School Committee of Springfield v. Board of Education

Quirico, J.

(with whom Reardon and Braucher, JJ., *335 join, concurring in the result). I concur in the result reached in the opinion of the court, but I do so on the basis of construing the applicable statutes in a manner which does not reach or decide questions of constitutionality.

On October 12, 1973, and February 11, 1974, the State board of education (board) entered orders for the elimination or reduction or racial imbalance in certain public schools of the city of Springfield. The board entered the orders in the exercise of the authority vested in it by the then existing statutes relating to racial imbalance in the public schools. G. L. c. 15, §§ 1I-1K, onde. 71, §§ 37C-37D, originally inserted by St. 1965, c. 641. On May 1, 1974, by our opinion in School Comm. of Springfield v. Board of Educ. 365 Mass. 215, 219-220, 234 (1974), we held that the orders of the board were valid and ordered that a single justice enter a final decree “affirming the board’s opinion and order and requiring a timely compliance therewith.” A single justice entered the required decree on May 15,1974.

The board’s order thus held valid by this court required some redistricting, with resulting transportation of a number of students by bus, for the elimination or reduction of existing racial imbalance. The racial imbalance statutes cited above were amended in many respects by St. 1974, c. 636, effective on July 26, 1974. Relevant to the present issue was an amendment to the effect that although the board could make recommendations to a local school committee which, in certain circumstances, would become mandatory, such recommendations and mandatory plan could “include any of the following measures, and no others...: additions to existing school buildings, use of leased or portable facilities, and changes in use of school buildings.” G. L. c. 15, § II, as appearing in St. 1974, c. 636, § 1.

The school committee argues in effect that because of the amendments to the racial imbalance statutes by St. 1974, c. 636, the orders of the board which were valid when entered have become unenforceable and that the final decree must therefore be vacated. It states in its brief: “Chapter 636 does not vacate any court decree either *336 expressly or in effect. However, the racial balance law has been amended by Chapter 636. The law as it stood prior to the enactment of Chapter 636 was the legal basis for the court order. That law no longer exists and therefore the court order must be changed.”

I do not agree with the contention in the last sentence quoted above. The mere fact that the board’s authority to approve or order a plan which involved implementation in part by redistricting and the transportation of students was repealed by St. 1974, c. 636, does not mean that its orders issued prior thereto are no longer effective or enforceable. Neither does it mean that the court’s earlier decree ordering enforcement of such orders has become null and void. In my opinion this conclusion is required by the application of the following rule of statutory interpretation stated by Chief Justice Rugg in Hanscom v. Malden & Melrose Gas Light Co. 220 Mass. 1, 3 (1914): “The general rule of interpretation is that all statutes are prospective in their operation, unless an intention that they shall be retrospective appears by necessary implication from their words, context or objects when considered in the light of the subject matter, the pre-existing state of the law and the effect upon existent rights, remedies and obligations. Doubtless all legislation commonly looks to the future, not to the past, and has no retroactive effect unless such effect manifestly is required by unequivocal terms. It is only statutes regulating practice, procedure and evidence, in short, those relating to remedies and not affecting substantive rights, that commonly are treated as operating retroactively, and as applying to pending actions or causes of action.” This language has been quoted with approval in numerous subsequent decisions of this court, one of the most recent being City Council of Waltham v. Vinciullo, 364 Mass. 624, 626 (1974), where we added, at 627: “There are, of course, limitations to the extent to which even procedural or remedial statutes will operate retroactively. At the extreme, no ‘retroactive’ procedural statute could apply to a case which has been closed, i.e., has gone to judgment and either been affirmed on appeal or not been *337 appealed within the time allowed for appeal.” The present case is one which has been closed by the entry of a final decree which has been affirmed by this court on appeal. Thus whether c. 636 be one affecting substantive rights or merely one relating to remedies, it has no retroactive effect in this case. Pittsley v. David, 298 Mass. 552, 554-557 (1937). Patrick v. Commissioner of Correction, 352 Mass. 666,669 (1967).

The court states that if c. 636 is viewed and considered against the historical background and other facts described in its opinion, “a persuasive argument can be made that the clear intent of that statute was to forestall, wherever possible, the immediate implementation of board-ordered racial balance plans which require redistricting or busing of students.” In my view, even if the legislative history of c. 636 indicated that the Legislature intended to nullify the preexisting orders of the board and decrees of the court, that would not be a factor in the interpretation of the statute because the Legislature did not translate that intent into the language of c. 636. A legislative intent, regardless of how obvious it may appear from sources other than the statutory language, cannot be judicially incorporated into a statute containing clear and unequivocal language which does not reflect that intent. 1 This, of course, is not intended to be a decision that the Legislature does or does not have the power, by the use of any language, to nullify any prior lawful order of the board, particularly an order previously enforced by a decree of this court. I conclude only that, if it had that power, it did not enact a statute which is adequate to accomplish that result.

If the Legislature had the intention imputed to it by the court’s opinion, the natural reading of the statute is that implementation of that intent was left to judicial application of equitable principles. We have the power to modify *338 an equitable decree in the light of changed circumstances, and a declaration of future policy by the Legislature “is entitled to the highest consideration of the court.” Sawyer v. Davis, 136 Mass. 239, 247 (1884). However, it is reasonable to assume from the history of the present controversy that if the decree were vacated the school committee would revert to its past policy of questionable constitutionality which resulted in five of its elementary schools having concentrations of 82.3% to 95.1% of nonwhite pupils in 1973 (see fn. 6 of the court’s opinion), and that it would take no present action to eliminate that condition. This is therefore not an appropriate case for vacating our prior decree.

It is my opinion, based on the foregoing interpretation of the racial imbalance statutes as amended by St. 1974, c. 636, that it is not necessary to consider or decide whether these statutes would be unconstitutional if interpreted as purporting to nullify the board’s prior orders and the court’s decrees. Ordinarily a court “will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.... Thus, if a case can be decided on either of two grounds, one involving á constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. . . . ‘When the validity of an act... is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’ Crowell v. Benson, 285 U. S. 22, 62 .” Ashwander v. Tennessee Valley Authy. 297 U. S. 288, 347-348 (1936) (concurring opinion of Brandéis, J.). Burton v. United States, 196 U. S. 283, 295 (1905). United States v. International Union United Auto., Aircraft & Agricultural Implement Wkrs. of America (UAW-CIO), 352 U. S. 567, 590 (1957). First Natl. Bank v. Attorney Gen. 362 Mass. 570, 594-597 (1972) (concurring opinion of Quirico, J.), and cases cited therein.

*339 Addendum by Tauro, C.J. In view of the unequivocal attitude of Justice Quirico in the concurring opinion that the constitutional question should not have been reached, and because of the frequent recurrence of this problem as it relates to statutory construction, it is my belief that it is not only appropriate but, indeed, essential to reexamine the history, logic, and rationale of the underlying rules. What I now state are my own views and may not necessarily reflect those of all of the Justices who joined with me in the majority opinion.

The concurring opinion would have us refrain from any consideration of the constitutionality of St. 1974, c. 636 (the amendment). Justice Quirico concludes, based on its construction, that the amendment does not interfere with or nullify the decrees in this case. Thus, he reasons, consideration of the amendment’s constitutionality is “not necessary” to our decision. Because such consideration is “not necessary,” the concurring opinion informs us that we may not undertake any constitutional analysis. In support of this position, the concurring opinion quotes Mr. Justice Brandeis concurring in Ashwander v. Tennessee Valley Authy. 297 U. S. 288, 347 (1936): “Ordinarily a court ‘will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.... Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.’ ”

On its face, the rule espoused by Brandéis provides for avoidance of constitutional adjudication in every situation in which such avoidance is feasible. The rule appears as an inflexible, blanket prohibition against resolving constitutional issues in the absence of absolute necessity.

In this addendum, I will explore the scope of the rule. I believe that it is not without limitation, qualification and exception and that courts must adopt such exceptions in *340 cases like the present Springfield case which raise questions of great public importance. 1

The rule is a venerable one and is often repeated in opinions by courts throughout the United States. It originated in those early decisions of Chief Justice Marshall which sought to establish judicial review of legislation’s constitutionality and, at the same time, to clarify the scope of the power of review. In Cohens v. Virginia, 6 Wheat. 264 (1821), Chief Justice Marshall wrote: “It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.” Id. at 404 . But that jurisdiction was not boundless in Chief Justice Marshall’s view. He tempered his remarks with an important qualification regarding judicial adventure in the legislative sphere: “If the first question [a matter of statutory construction] be answered in the affirmative, it will become necessary to consider the second [the constitutionality of the law in question]. If it should be answered in the negative, it will be unnecessary, and consequently improper, to pursue any inquiries, which would then be merely speculative, respecting the [constitutional] power of Congress in the case.” Id. at 441.

In Chief Justice Marshall’s words, we can discern the Brandéis rule in embryo. The nonconstitutional issue receives priority of determination. If it is dispositive, the court will not reach questions of constitutionality. They *341 then become “unnecessary” and “consequently improper.”

This rule of judicial restraint, of course, achieved great currency and was liberally adopted in the opinions of the United States Supreme Court and other Federal and State courts. E.g., Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. 420, 553 (1837); Trade-Mark Cases, 100 U. S. 82, 95-96 (1879); Liverpool, N. Y. & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885); Baker v. Grice, 169 U. S. 284, 292 (1898); Burton v. United States, 196 U. S. 283, 295 (1905); Siler v. Louisville & Nashville R.R. 213 U. S. 175, 193 (1909); Massachusetts.v. Mellon, 262 U. S. 447, 488-489 (1923); Alabama State Fedn. of Labor v. McAdory, 325 U. S. 450, 461-462 (1945); Poe v. Ullman, 367 U. S. 497, 503-504 (1961); Ex parte Randolph, 2 Brock. 447, 478-479 (Cir. Ct. D. Va. 1833) (opinion of Marshall, C.J.); Hoover v. Wood, 9 Ind. 286, 287 (1857); Weimer v. Bunbury, 30 Mich. 201, 218 (1874); Elliott v. Oliver, 22 Ore. 44, 48 (1892).

In adhering to the rule, the United States Supreme Court has fashioned a variety of adjudicatory devices which stand up as independent nonconstitutional grounds for decision and permit decision without passing on the constitutionality of legislation or executive action. See, generally, Gunther, The Subtle Vices of the “Passive Virtues” — A Comment on Principle and Expediency in Judicial Review, 64 Col. L. Rev. 1 (1964). On the merits the court will resolve a case through statutory construction tailored to constitutional requirements (Dennis v. United States, 341 U. S. 494, 501 [1951]) or through a process of severing a statutory provision which is clearly constitutional and is at issue in the litigation from the remainder of a dubious statute. Electric Bond & Share Co. v. Securities & Exch. Comm’n 303 U. S. 419 (1938). Communist Party of the U. S. v. Subversive Activities Control Bd. 367 U. S. 1, 72-73 (1961). In like manner, the court will dismiss an appeal or writ of certiorari because a State court judgment rested on an adequate State ground which precluded constitutional review (Enterprise Irr. Dist. v. Farmers Mut. Canal Co. 243 U. S. 157, 164 [1917]; Jankovich v. Indiana Toll Rd. *342 Commn. 379 U. S. 487,489 [1965]) and will remand cases to State courts for clarification of the foundation (State law or the United States Constitution) of the ruling below. Minnesota v. National Tea Co. 309 U. S. 551, 557 (1940). Department of Mental Hygiene of Cal. v. Kirchner, 380 U. S. 194, 201 (1965). This arsenal of avoidance tools is supplemented by an additional array of often used doctrines such as standing, justiciability, abstention, and mootness. See, generally, Bickel, The Supreme Court 1960 Term, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 (1961).

The fact that the rule of avoidance of constitutional issues is often reiterated and variously effectuated does not in any way indicate that it is an ineluctable commandment binding on every court. Fundamental law, constitutional and statutory, does not compel refusal to adjudicate constitutional issues. Though the rule is occasionally thought to have jurisdictional overtones for the Federal courts in the light of art. 3, § 2, the United States Constitution’s case or controversy requirement 2 (see, e.g., Liverpool, N. Y. & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U. S. 33,39 [1885]; Herb v. Pitcairn, 324 U. S. 117, 125-126 [1945]; Bickel, The Supreme Court 1960 Term, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 , 43 [1961]), the better view would seem to be that it is a prudential rule developed by the United States Supreme Court (and other courts) “for its own governance in the cases confessedly within its jurisdiction.” Ashwander v. Tennessee Valley Authy. 297 U. S. 288, 346 (1936) (Brandeis, J., concurring). See Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549, 568-571 (1947); Barrows v. Jackson, 346 U. S. 249, 255 (1953); United States v. Raines, 362 U. S. 17, 23 (1960); Ex parte Randolph, 2 Brock. 447, 478-479 (Cir. Ct. D.Va. 1833); Robertson & Kickham, Jurisdiction of the Supreme Court of *343 the United States (Wolfson & Kurland ed.) § 266, p. 485 (1951); Sandalow, Henry v. Mississippi and the Adequate State Ground: Proposals for a Revised Doctrine, 1965 Sup. Ct. Rev. 187 , 201. See also Moore v. Election Commrs. of Cambridge, 309 Mass. 303, 306 (1941); Commonwealth v. Gilfedder, 321 Mass. 335 (1947). Thus, the rule with which Justice Quirico would forestall our consideration of the constitutionality of the amendment exists only because a court, in its sound discretion, chooses to give it life. But matters within the discretion of a court can always be revised for good policy reasons. Here, then, is the most elementary limitation on the rule: When a court finds that the policy supporting the rule is overborne by other considerations it may decline to follow the rule. To specify those situations in which such deviations from the rule are appropriate, I must now proceed to explore the foundations of the rule.

Two fundamental notions, arising o.ut of a view of the proper judicial function in our society, underlie the rule of judicial avoidance of unnecessary constitutional questions. The first notion, probably the more significant, is that of comity among the branches of our tripartite government. In Bowe v. Secretary of the Commonwealth, 320 Mass. 230 (1946), we commented on the court’s duties under the Constitution and its relationship to the other coequal branches of government: “The power to hold statutes unconstitutional is the logical and inevitable result of the existence of law-making power at different levels of authority. .. . When ... [a court] has to pass upon the validity of an act of a coordinate branch of government, a court exercises a grave and delicate function. A court never seeks to decide a constitutional question. It never volunteers an opinion. It remains silent and inactive until some case comes before it in which the rights of the parties depend upon the constitutional validity of a statute....” Id. at 244-245 . This “grave and delicate” function, a necessary concomitant of judicial independence and responsibility, inevitably must affront the legislative and executive branches when their actions are subjected to scrutiny and *344 criticism. A proper regard for these coequal branches minimizes the likelihood of affront and, so, delimits the judicial purview in constitutional matters. As Chief Justice Marshall wrote, “[A] just respect for the legislature requires that the obligation of its laws should not be unnecessarily and wantonly assailed.” Ex parte Randolph, 2 Brock. 447, 479 (Cir. Ct. D. Va. 1833). In a government of separated powers, each branch must exhibit due deference to the others if they are to coexist harmoniously. See Trade-Mark Cases, 100 U. S. 82, 95-96 (1879); Communist Party of the U. S. v. Subversive Activities Control Bd. 367 U. S. 1, 72 (1961); Hunter v. Colfax Consol. Coal Co. 175 Iowa 245, 269 (1915); State v. Harrison, 130 W. Va. 246, 249 (1947). The function becomes correspondingly graver and more delicate when decision by the Federal courts would contain the potentiality for Federal-State conflict. To the' traditional concerns invoked by the separation of powers are added the complexities and protocol of a Federal system. See Parker v. County of Los Angeles, 338 U. S. 327, 332-333 (1949); Poe v. Ullman, 367 U. S. 497,503 (1961).

The second policy support for the rule of avoidance of constitutional decision inheres in the “very nature of the judicial process. [Cjourts can most wisely determine issues precisely defined by the confining circumstances of particular situations.” Communist Party of the U. S. v. Subversive Activities Control Bd., supra. This restriction is considered especially apposite in constitutional litigation. Constitutional questions are, by their nature, intricate. Their outreach is tremendously broad. Without a secure factual mooring, constitutional decisions can generate unanticipated repercussions. Therefore, before venturing to break new constitutional ground, the courts must await optimum presentation of the issues. The absence of a constitutional question which arises necessarily from the fact pattern deprives the court of insights and interconnections which should illuminate the ultimate holding. The court must be able to “decide a constitutional question with confidence that relevant considerations have not been overlooked.” Bowe v. Secretary of the Commonwealth, 320 *345 Mass. 230, 246 (1946). See Cole v. Chief of Police of Fall River, 312 Mass. 523, 526 (1942), app. dism. sub nom. Cole v. Violette, 319 U. S. 581 (1943), reh. den. 320 U. S. 810 (1943); Alabama State Fedn. of Labor v. McAdory, 325 U. S. 450,462 (1945).

Thus, the rule of judicial restraint urged by the concurring opinion evolved because of a judicial desire to preserve amicable relations with coordinate branches of government and to assure the fullest possible consideration of constitutional questions before decision. In the mundane case, these justifications suffice to preclude judicial action on constitutional issues. However, in the extraordinary case which raises questions of the utmost public importance, this structure of restraint must fall by the wayside. In the extraordinary case, the court must exercise its discretion to hear constitutional argument. Policy considerations favoring constitutional adjudication overwhelm those which militate against immediate resolution of constitutional issues.

Generally, I would state the rule for reaching constitutional questions in spite of an alternative nonconstitu-tional ground as follows: this court must accept the responsibility of constitutional adjudication when (1) the constitutional issue is of overriding public concern; (2) the issue is bound to reappear and must be decided in subsequent litigation; and (3) the issues have been exhaustively briefed and argued by adverse parties. Zealous regard for the sensibilities of coordinate branches must give way before public necessity. The public has a right to judicial guidance concerning the propriety and legality of alternate courses of action in matters of great moment. This is particularly true when the issue will recur in litigation before the court. Adjudication then is not a needless affront to the Legislature. Rather, the adjudication avoids unnecessary delay, forestalls future litigation, and conserves judicial time and resources by not requiring reargument of the issues. The affront, if such it is, would occur anyway at a later date. Finally, since the adversaries under the rule which I propose have contested the issues fully, there can be *346 no advantage in awaiting presentation of the constitutional issue in another factual context. Heated adversary argument, extensive briefing, and searching judicial scrutiny already have supplied the sharp focus which good practice demands of constitutional litigation.

In this vein, in Commonwealth v. Gilfedder, 321 Mass. 335 (1947), we elected to reach issues under the First Amendment to the United States Constitution posed by complaints charging defendants with delivering “ ‘oration [s]’ ” on the Boston Common in violation of the General Rules of the Board of Park Commissioners. We declined the opportunity to rule on narrow grounds going to the sufficiency of the complaints or to a conflict between the General Rules of the Board of Park Commissioners and Revised Ordinances of Boston. Justice Qua explained our decision: “The1 issue of constitutionality has been fully argued. Even if we could manage to avoid deciding it now, it would certainly arise again in the near future, and additional expense would be incurred. In these circumstances it seems our duty in the interest both of the parties and of the public to deal with the fundamental [constitutional] issue which will prove decisive of all the cases.” Id. at 338 . See Moore v. Election Commrs. of Cambridge, 309 Mass. 303, 306 (1941); School Comm. of Boston v. Board of Educ. 352 Mass. 693, 697 (1967), app. dism. 389 U. S. 572 (1968); Wachusett Regional Sch. Dist. Comm. v. Erickson, 353 Mass. 77, 79 (1967).

In Matter of Bell v. Waterfront Commn. of N. Y. Harbor, 20 N. Y. 2d 54 (1967), the New York Court of Appeals reviewed a waterfront commission order which revoked the petitioner’s registration as a longshoreman. The court found that the petitioner had lied to the commission while under oath and that this perjury alone amply justified revocation of registration. Technically, therefore, the petitioner lacked “standing” to challenge the constitutionality of a statute which authorized disciplinary action against longshoremen engaged in subversive activity. Id. at 60. Nevertheless, the court examined the constitutionality of the statute. The opinion of Chief Judge Fuld echoes our *347 sentiments in the Gilfedder case: “This principle [the petitioner’s lack of standing] would manifestly justify our declining to pass upon the constitutional argument advanced by the petitioner. However, it is settled that judicial reluctance to decide questions which need not be reached must give way when a case raises ‘important constitutional issues’ and the ‘controversy is of a character which is likely to recur.’ ” Id. at 61.

Similar analysis has controlled numerous cases in other jurisdictions. Buckingham v. State, 42 Del. 405, 409 (1944). Hammond v. Bingham, 83 Idaho 314, 317 (1961). Sarlls v. State ex rel. Trimble, 201 Ind. 88, 100 (1929). Hunter v. Colfax Consol. Coal Co. 175 Iowa 245, 274 (1915). Alongi v. Schatzman, 57 N. J. 564, 574 (1971). State v. Conragan, 54 R. I. 256, 259 (1934). See In the Matter of Brown, 439 F. 2d 47, 51 (3d Cir. 1971); State ex rel. Bland v. St. John, 244 Ala. 269, 277 (1943); Eye Dog Foundation v. State Bd. of Guide Dogs for the Blind, 67 Cal. 2d 536, 541-542 (1967); Hardware Mut. Cas. Co. v. Premo, 153 Conn. 465, 473 (1966); Ex Parte Lewis, Petitioner, 101 Fla. 624, 628 (1931); Green v. State ex rel. Phipps, 166 So. 2d 585, 587 (Fla. 1964); State ex rel. Collins v. Jones, 106 Miss. 522, 588 (1913); State ex rel. West v. Thomas, 62 N. M. 103, 106 (1956); Battles v. State ex rel. Okla. Commn. for Crippled Children, 206 Okla. 444, 445 (1951); State v. Harrison, 130 W. Va. 246, 249 (1947); Eastwood v. Wyoming Hy. Dept. 76 Wyo. 247 (1956).

The United States Supreme Court has not explicitly fashioned a broad policy-based exception to the Brandéis rule of avoidance. Occasional language in opinions mentions specific exceptions or hints that the rule may not be one of universal applicability. See, e.g., Siler v. Louisville & Nashville R.R. 213 U. S. 175, 193 (1909) (“course is usually pursued”); United States v. Raines, 362 U. S. 17, 22 (1960) (“some exceptions ... where there are weighty countervailing policies”). In cases in which the court does not adhere to the rule, it most often passes over a possible Brandeisian objection without comment. The rationale for deviation from established practice remains shadowy. *348 Frequently, the only signal that the court has, in fact, ignored an adequate nonconstitutional gravamen is an emphatic dissent or concurrence which seeks to demonstrate the illegitimacy of the path taken. See, e.g., Shapiro v. United States, 335 U. S. 1, 37 (1948) (Frankfurter, J., dissenting); Aptheker v. Secretary of State, 378 U. S. 500, 522-523 (1964) (Clark, J., dissenting); Crider v. Zurich Ins. Co. 380 U. S. 39, 45 (1965) (Goldberg, J., dissenting); Powell v. McCormack, 395 U. S. 486, 573 (1969) (Stewart, J., dissenting); Benton v. Maryland, 395 U. S. 784, 801 (1969) (Harlan, J., dissenting); Wyman v. James, 400 U. S. 309, 345 (1971) (Marshall, J., dissenting). It is enough for my purpose here to know that the Supreme Court practice of avoidance of constitutional issues is not an invariable one mandated by the Constitution or by statute. As the practice is discretionary and based on policy, our court may deviate from the practice whenever our experience and sound policy suggest that deviation is appropriate. That general course is the one I propose here.

That course is notably appropriate in the instant case. If there is any case containing constitutional issues of overriding importance which merit immediate judicial attention, it is this case. In recent weeks and months, the issue of school desegregation has thoroughly occupied the forefront of public attention in the Commonwealth. It has aroused passions and engaged the interest of a broad cross section of citizens. It has sparked an acrimonious (at times, a violent) debate over educational priorities and children’s destinies.

In the instant case, we have before us one attempt to shape the educational system which instructs the Commonwealth’s young. The Legislature, responsive to public concern over racial imbalance solutions, has enacted an amendment which alters the array of available and necessary remedies for achieving racial balance. We have a public duty to express, promptly and categorically, our view of the amendment’s constitutionality. No unrealistic hopes should be built dn an unconstitutional statute. No hopes should be thwarted by an unconstitutional statute. This is our opportunity to give direction. We have properly *349 decided these questions now and have avoided further delay.

There can be no advantage in delay. If we were to delay, we would forfeit this opportunity to give the citizens of Springfield and the officials whose responsibility it is to maintain desegregated schools in the Commonwealth an authoritative adjudication of their constitutional duties under the amended imbalance law. Their uncertainty could only generate more litigation, more confusion, more expense, and more rancor.

If there was any doubt as to the likelihood of recurrent litigation and the necessity for an immediate constitutional decision, this doubt has been dispelled. By letter of October 31,1974, to this court, the superintendent of public schools of Springfield, writing for the Springfield school committee, reminded us that the committee is under a mandate of the State board of education to provide a phase two plan to integrate the schools of Springfield by December 2,1974. Among the goals of the plan will be the “lessening of] the racial isolation of Puerto Rican students,” a matter we specifically excluded from the decree in School Comm. of Springfield v. Board of Educ. 365 Mass. 215, 228-233 (1974). The superintendent expressed the belief, held by the committee, that the committee should act under the 1974 amendment and requested “an early written decision” by this court to assist in its deliberations. 3

Had we adopted the course advocated by Justice Quirico and avoided the constitutional issue, the committee would *350 have received no notice that sections of the amendment are unconstitutional and no guidance in alleviating the isolation of the Puerto Rican students. The committee would have acted without a definitive ruling on the constitutionality of the amended racial imbalance law, a ruling which it obviously wanted and needed. In fact, the committee might have felt free to deny the Puerto Rican pupils relief from their isolation through involuntary busing.

Yet, challenge to any plan which did not bus the Puerto Rican pupils or to any other plan would be inevitable. Again, challenges would have involved more delay, more expense, and more protracted litigation which, at long last, would require a decision on the constitutional question — if not by this court, then by a Federal court.

This delay would have been particularly unnecessary in view of the posture of this litigation before us. The issue is ripe for decision. The parties to this litigation have challenged and defended the amendment. They have fully briefed their respective positions and have argued them forcefully before this court. Future litigants or litigation, it would seem, could add little to clarify constitutional concerns or to assist our exploration of the permissible constitutional course.

Under these circumstances, refusal to decide the constitutional issues because of a possible statutory construction would be an abnegation of our responsibilities. In sum, resort to statutory construction was meant to be applied, when indicated, to avoid unnecessary and needless confrontation with the Legislature. It was not intended as a means to evade important constitutional issues when the facts and posture of the case clearly require their prompt resolution. Cf. DeFunis v. Odegaard, 416 U. S. 312 (1974).

In a number of decisions we have indicated that in interpreting statutes resort may be had to the legislative history “only to aid in the solution of an ambiguity.” Allen v. Commissioner of Corps. & Taxn. 272 Mass. 502, 508 (1930). D. N. Kelley & Son, Inc. v. Selectmen of Fairhaven, 294 Mass. 570, 576 (1936). Nichols v. Commissioner of Corps. & Taxn. 314 Mass. 285, 293 (1943). Milton v. Metropolitan Dist. Commn. 342 Mass. 222, 223 (1961).

Because I also believe that another construction of the amendment is more “logical,” I have no difficulty reaching the constitutional issues in this case. The amendment does affect the decrees and must receive constitutional attention. However, as I have stated, the Brandéis rule arises with sufficient frequency that I feel an in-depth review of the underlying law is in order at this time.

“The judicial power shall extend to all cases, in law and equity, arising under this constitution... to controversies to which the United States shall be a party----”

“The Springfield School Committee, at its regular meeting of October 24, 1974, requested me to bring to the court’s attention that the Committee must provide the State Board of Education with a long-range plan to eliminate racial imbalance in the Springfield Public Schools, by December 2,1974.

“The Committee feels that this long-range plan, including ways to lessen the racial isolation of Puerto Rican students should be written in conformity with those provisions of Chapter 636 of the Acts of 1974 that are to be upheld by the Court.

“Because of the many variables that must be considered by the School Committee in its deliberations, an early written decision of the court’s oral decision of August 22, 1974, would be greatly appreciated by the School Committee.”