Petition — Rogers v. Brockette

Supreme Court brief1979

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IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

“WNo.......€871616

Dr. RONNIE ROGERS, FT AL.,

Petitioners,

Vs.

Dr. M. L. BROCKETTE. ET AL..

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

EARL LUNA & THOMAS V. Muro lll

LUNA, Murto & VorPAHI

2416 LTV Tower

1525 Elm Street

Dallas, Texas 75201

214/747-1582

Counsel for Petitioners

‘

INDEX

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ese alas sksasepcnsesseaasabereavaceeerse 2

Neen essa Lin sudsbessnsnsasdsnesennssascees 2

Questions Presented for Review ................cccccedsccscscsccsess 2

Constitutional Provisions, Statutes

SII NEE occas cc cavabecnscnscescsseccdascncasssccess

Nene ec ciadsspivannsesecegsensesesss 4

I OU OSE concen scsccccsssecccerccscesssecesss 7

!. The Decision Below Has a Major Impact on the

Fundamental Federal-State-Local Relationship

Established by Congress in the School Breakfast

EIS 7

2. The Decision Below Will Have a Significant Impact

Upon and Could Result in a Serious Hindrance in the

Operation of the School Breakfast Program ............. 14

3. The Decision Below Conflicts with Principles in

Decisions of this Court and Other Courts ................. 20

ee ec va paccabivaxcessedadessssocssecsecess 24

ec ccs lunsinedscessghbisaccvseseeseeses 25

Appendix

Constitutional Provisions, Statutes and

Regulations Involved ............................... A-l— A-9

Opinion and Judgment of Court of Appeals... B-| — B-55

Order and Judgment of District Court ........... C-1— C-3

TABLE OF AUTHORITIES

PAGE

Cases;

Charette v. Bergland, 457 F.Supp. 1197

SG Mi PN asta c since ack uccalsevon ates asyehvainemiekessis 4, 20, 23

County of Los Angeles, Cal. v. Adams, 574 F.2d 607

SIA Ry WRUUER dj savedics <a cccktoa bec ceadecdeclueccakeasuusiaies cinves 22

Helvering v. Davis, 301 U.S. 619 (1937) ooo ccc ccc ccccccccccuccees 21

King v. Smith, 392 U.S. 309 (1968) oo. ..cccccccccccccccecccceceeeee 21

Miller v. Youakim, 99 S.Ct. 957 (1979) ..... oc cccccececececeseces 21

Rogers v. Brockette, 588 F.2d 1057 (Sth Cir. 1979) .... 2,17, 18

Torres v. Butz, 397 F.Supp. 1015 (N.D. HL. 1975) .......... 23,24

Townsend v. Swank, 404 U.S. 282 (1971) wo... ec cece ec ee es 21

Zuber v. Allen, 396 U.S. 168 (1969)..........cccccccoccecececscceee 11

Constitutional Provisions, Statutes and Regulations:

United States Constitution, Article 6, Clause 2 ................ 3

eA UND Since ccanc ts hab ahi dec uabes bnoh¥ ave dabiccedeccss 2

Be IIE saa ta siettendn So dacicnovha< insdicpiist du Saanines Aacenes 4

NEF IEE MEME Sica torah an as acta Wahab Gaia eaeds Gcaiovdeeac es akeak 4

ee RE Pt aM GUND. csi ccesk d/anaacd denn sacunsdpdansd nadioech iar 4

ee Be Ne, ETN aia desks er pceneekakes Asdbsvlbsighacesvanrie AO

ee oe TOD as darker her insects okcsolescnd anes 8,9, 11

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ee NE TEM ata cicideaas recs dsinacnnckanmriaierceubeikvavbatvossic 4 3.4.8

Be Ree UT a sants i ieneniceekcuassonteden sacnidliavesdosiscjukzeenaiess 4

MP ING Ns oc dees fone chases dank an Guscne hin dhaaoades ave 22

ARR IIE Sika, ech ccc fovwa seins ko Sasecvsnus, 4

TABLE OF AUTHORITIES (Continued)

PAGI

Fie tn es ER ova Seskbnec eit aeseneGie cvabeuats Soeinpesene 3,8

BO ns OE, I I a hice cc ancaen Agana euckioasbebacconiatns 3,9, 13

eens. Amt. Came cet. TD, BICS (aR) oociccisssccscsskscorsesed.cace 18

Mich. Comp. Laws Ann. §380.1272a(2) (Supp. 1978) ........ 18

N.Y. Educ. §2554 note (McKinney Supp. 1977-1978)... 18,19

Ohio Rev. Code §3313.813 (Supp. 1977)...............ccceeeeeees 19

Texas Education Code, Sec. 21.914............. 2, 3,5, 6,9, 13, 22

Texas Education Code, Sec. 23.26.......:..c..cecccscssssssseseeees 3

Congressional Records:

H.R.Rep. No. 95-884, 95th Cong., 2d Sess., (1978).......... 14

H.R. No. 95-1153, pt. 1, 95th Cong., 2d Sess. (1978)..... 12, 23

S.Rep.No. 91-641, 9ist Cong., 2d Sess. (1970) ......0...... 11, 16

S.Rep.No. 95-884, 95th Cong., 2d Sess. (1978) ............ 12,14

S.Rep.No. 94-259, 94th Cong., Ist Sess. (1975) ............68. 12

162 Comm, Roc. 15203, US206 CUDGG) n...s sviiiccccccceccsccsss 10

Re I PO OO FI ons fat saa sant nys degen ei Saasinasobainns 10

Se: WE EEO OD scndaniciavisceavccacetecvinctensahaians 10

SR ee I ED con skecilieenedisvinwukenuchebensevekwins 10

TER FEET UTIs sacccs she sencvarnsckssseassscacsenavrens 10

124 Cong. Rec. $11483 (daily ed. July 21, 1978) .......... 12, 13

124 Cong. Rec. S$19217 (daily ed. October 14, 1978)......... 13

TABLE OF AUTHORITIES (Continued)

PAGE

Hearing on Nutrition and Human Needs, 1972 Part 1:

School Breakfast Program Survey, before Senate

Select Comm. on Nutrition and Human Needs,

926 Cong., 28 Seas. (9982s. tai: 10

Hearings on S. 2630, S. 2809, and S. 2824 Before the

Subcomm. on Nutrition of the Senate Comm. on ,

Agriculture, Nutrition and Forestry, 95th Cong.,

28 Sens... pt. U0, CUPID. .scseseciencsacteueanasepeeee ee coceceeee 15

Hearings on S. 2630, S. 2809, and S. 2824 Before the

Subcomm,. on Nutrition of the Senate Comm. on

Agriculture, Nutrition and Forestry, 95th Cong.,

26 Sess... pt. U (SGT). onc cscs. ccnadacscipeaieees teem cates 16,17

Others:

National Center of Educational Statistics, Digest of

Educational Statistics 1977-1978, 12 Table 9.................. i4

Dallas Morning News, Texas Almanac, 1976-1977, 523..... 14

IN THe

Supreme Court of the Anited States

OcTOBER TERM, 1978

Dr. RONNIE ROGERS, ET AL.,

Petitioners,

Dr. M. L. BROCKETTE, ET AL..

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Your Petitioners’ respectfully pray that a writ of certiorari

issue to review the judgment of the United States Court of

Appeals for the Fifth Circuit, entered in the above entitled case

on February 2, 1979.

‘The Petitioners are Dr. Ronnie Rogers, Harris Hill, Charles

Cooper, Darwin Morris, Jim Kennedy, R.E. Dodson, and Dr. Donald

Senter, members of the Board of Trustees of the Garland Independent

School District, and Dr. Eli Douglas, Superintendent of Schools,

Garland Independent School District, individually and in their official

(Footmote continued on followime pac

OPINIONS BELOW

The opinion of the United States Court of Appeals is reported

at S88 F.2d 1057 (Sth Cir. 1979), a copy of which is attached

hereto in Appendix B along with a copy of the court’s judgment.

The United States District Court for the Northern District of

Texas did not write an opinion; copies of the order and the

judgment of the district court are attached hereto in Appendix C.

GROUNDS FOR JURISDICTION

The judgment sought to be reviewed was entered by the United

States Court of Appeals for the Fifth Circuit on February 2,

1979. This petition for certiorari was filed within 90 days of that

date.

This Court's jurisdiction is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED FOR REVIEW

|. Whether Section 21.914 of the Texas Education Code,

making the voluntary Federal School Breakfast Program

mandatory in Texas schools, conflicts with the federal statute

capacities, and in behalf of all others similarly situated, and the

Garland Independent School District of Texas. The respondents are

Dr. M.L. Brockette, the Commissioner of Education for the State of

Texas, and the members of the State Board of Education of Texas,

Mrs. Elizabeth Armstrong, Vernon Baird, Woodrow W. Bean, James

M. Binion, Joe Kelly Butler, W.W. Carter, Don H. Cook, D.D.S.,

Brian Crouch, Dr. Virginia Currey, Jimmy L. Elrod, W.H. Fetter,

Wayne Frederick, Joseph C. Gathe,M.D., E.R. Gregg, Jr., Ruben

b. Hinojosa, Jim Hollingsworth, Dr. William N. Kemp, Mrs. Mary

Ann Leveridge, Paul Mathews, Dr. Stanley B. McCaleb, Glen

L. Smith, Mrs. Yolanda Torres, Mrs. Jane H. Wells, and James

H. Whiteside.

creating the School Breakfast Program, 42 U.S.C. §1773, and

the implementing regulations, and is therefore in violation of the

Supremacy Clause of the United States Constitution.

2. Whether a State Legislature may alter Federal law by a

Legislative decision requiring individual schools to participate,

or not participate, in the Federal School Breakfast Program

when the Federal law authorized each school district to make the

decision and thereby encourage a voluntary Program with

Federal, State and local cooperation.

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED

The pertinent provision of the United States Constitution ts

Article 6, Clause 2, the Supremacy Clause.

The statutes involved are 42 U.S.C. Sections 1773 and 1779,

and Sections 21.914 and 23.26 of the Texas Education Code.

The pertinent regulations are 7 C.F.R. Sections 220.2(w) and

220.7(a). ‘

These constitutional provisions, statutes and regulations are

set forth in Appendix A.

STATEMENT OF THE CASE

The Garland Independent School District (GISD) and the

members of its Board of Trustees and its Superintendent of

Schools, in their official capacities and individually as taxpayers

in the Garland Independent Schoo’ District filed this suit in

federal district court against the Commissioner of Education and

the members of the State Board of Education for declaratory and

injunctive relief. The federal district court had jurisdiction of the

suit under 28 U.S.C. §1331 and 1343 in conjunction with 42

U.S.C. §1983. This suit is based upon GISD’s contention that a

Texas state statute is unconstitutional for being in conflict with

the federal breakfast program statute and regulations.

Congress has established several federal statutory programs

designed to promote the nutritional health of the country’s

children from the beginning of life in the mother’s womb through

the high school years. Charette v. Bergland, 457 F.Supp. 1197,

1199 (D.R.1. 1978). Among these programs are the National

School Lunch Program and the School Breakfast Program. See

42 U.S.C. §1751 et seq. and §1773. These programs are

administered by the Department of Agriculture. 42 U.S.C.

§§1779 and 1784. In these two programs the federal government

assists participating schools in providing meals to poorer

students free or at reduced prices. Participating schools must

abide by federal regulations governing the quality and

availability of meals and the administration of such programs. In

return, a participating school receives a subsidy from the federal

government.

These programs as established by Congress and administered

by the Department of Agriculture are voluntary. Federal law

leaves the decision regarding whether to participate in the School

Breakfast Program with the local school authorities.

GISD presently has 45 campuses with food service facilities,

with the student population on those campuses ranging from 190

to 2,750 students; it also has three campuses without food service

facilities, with student populations ranging from 25 to 90

students. Food is catered to the latter campuses from other

campuses. (R. 16-17)

GISD has decided not to participate in either federal program.

In lieu thereof, it offers its own locally funded free lunch program

for eligible students. (R. 16-17)

Due to the family style of living in GISD, where parents

apparently prefer to have their children eat breakfast at home

with the family before school instead of sending them to school

for breakfast, no parent has ever requested that the district serve

breakfast to students. Therefore, GISD has never chosen to

operate a breakfast program.

The federal statute provides that states in cooperation with the

Department of Agriculture are to carry out an informational

program to convince local school districts that they should

choose to participate in the School Breakfast Program if they

have schools in which the program is needed to provide adequate

nutrition for the children in attendance. 42 U.S.C. §1773(g).

Rather than taking the time and effort to conduct the

informational program and to convince GISD or the more than

800 other school districts in Texas that were not participating in

the program that they should elect to participate in the federal-

state-local cooperative program, the Texas legislature saved

itself the effort and cost of the informational program by

enacting in 1977 §21.914 of the Texas Education Code.

Section 21.914 provides as follows:

“Tf at least 10 percent of the students enrolled in one or

more schools in a school district are eligible for free or

reduced-price breakfasts under the national school

breakfast program provided for by the Child Nutrition Act

of 1966 (42 U.S.C. Subsection 1773), the governing board

of the district shall participate in the program and make the

benefits of the program available to all eligible students in

said schools.”

This statute would require GISD to institute the School

Breakfast Program in at least twenty-two of its schools. GISD

estimates that instituting the program in those schools will

require modifying some of the buildings and purchasing of new

equipment at a cost of approximately $26,000. It also estimates

that instituting the breakfast program will require a lengthened

school day which will increase anual salary and utility expenses

by $114,000. These expenses may not be covered by federal

reimbursements. (R. 16-17, 24-26).

Perceiving that the Texas legislation was a shortcut to allow

the state to dodge its informational obligations by altering the

nature of the program to one of merely federal-state cooperation

by removing from the local officials the choice provided by

Congress, GISD initiated this suit alleging that §21.914 of the

Texas Education Code conflicts with the federal statutes and

regulations. The district court granted a summary judgment for

the defendant state officers, holding that none of the plaintiffs

had standing to bring the suit, and that the state statute did not

conflict with the federal law.

In an expedited review, the Fifth Circuit affirmed the

judgment of the district court, holding that GISD did have

standing to bring the suit” but that §21.914 did not conflict with the

federal law.

“Due to this ruling, the Fifth Circuit held that it could reach the

merits without deciding the standing issue for the taxpayers or the

members of the GISD Board of Trustees in their official capacities.

REASONS FOR GRANTING THE WRIT

The Court should grant a review on writ of certiorari of the

judgment of the United States Court of Appeals for the Fifth

Circuit because portions of the decision of that court decide

important questions of federal law which have not been, but

should be, settled by the Supreme Court. The Fifth Circuit's

decision will have a significant impact upon and could hinder the

administration of the School Breakfast Program both in Texas

and nationwide. Furthermore, portions of the Fifth Circuit's

decision conflict, in principle, with decisions of this court and

decisions of other courts.

The Decision Below Has a Major Impact on the Fundamental

Federal-State-Local Relationship Established by Congress

in the School 8reakfast Program.

The Fifth Circuit’s opinion in this case involves important

statutory and policy considerations which are fundamental to

many federal statutory welfare programs in general and the

School Breakfast Program in particular. Since this Court has

never had occasion to address itself to the federal food programs,

there are compelling reasons for the Court to set guidelines on

the federal-state-local relationship involved in the School

Breakfast Program and the extent to which a state may

permissibly alter this relationship.

The School Breakfast Program is one of a number of federal

statutory programs designed to promote the nutritional health of

American children from the beginning of life in the mother’s

womb through the high school years. The program was initially

authorized as a 2-year pilot program under the Child Nutrition

Act of 1966. Participating schools were selected by state

educational agencies from those schools drawing attendance

from areas in which poor economic conditions existed and from

those schools where a substantial proportion of the children

enrolled must travel long distances daily. Since its inception, the

program has been continued and expanded by frequent

amendment. In 1972, the School Breakfast Program was made

available to all schools that desired the program, and the

program funding was made open-ended. In October, 1975,

Congress made the program permanent. The federal food

programs, such as the National School Lunch Program, the

School Breakfast Program and the special milk programs, have

been designed by Congress to be voluntary federal-state-local

cooperative programs. Each level has its own authority and

responsibilities in the administration of the program. As

conceived by Congress, the local level, the school district

governing body or “School Food Authority,” 7 C.F.R.

§220.2(w), determines which of its schools will participate and

administers the program in its participating schools. The state

educational agency is primarily the conduit for the distribution of

federal funds to the local level and is responsible for monitoring

compliance with the program by the participating local

authorities. The Secretary of Agriculture is charged by Congress

with prescribing “such regulations as he may deem necessary,”

42 U.S.C. §1779, with administering the program on a national

basis, and with seeking and distributing the federal funds

necessary for the program.

As with any voluntary program, someone or some entity has

the authority to decide whether to participate. For the School

Breakfast Program, Congress has given this authority to the

school district governing board.

“There is hereby authorized to be appropriated such sums

as are necessary to enable the Secretary ... to initiate,

maintain, or expand nonprofit breakfast programs in all

schools which make application for assistance and agree to

carry out a nonprofit breakfast program ....° 42 U.S.C.

§1773(a) (emphasis added).

The implementing regulations promulgated by the Secretary

of Agriculture repeat this grant of the authority to make the

“participation decision.”

“The School Food Authority shall make written

application to the State agency .. . for any school in which

it desires to operate the School Breakfast Program ....”

7 C.F.R. §220.7(a) (emphasis added).

The State of Texas now seeks to alter the relationship

established by federal law by taking from the local authorities

and appropriating to itself the right to decide which of the

schools in the state will participate in the School Breakfast

Program. Tex.Educ.Code, §21.914. The decision of the Fifth

Circuit approves the state’s alteration of this fundamental basis

of the School Breakfast Program.

The Fifth Circuit attempts to justify its approval of the Texas

statute by interpreting §1773(a) to be merely an authorization of

funds, not dealing with the relative powers of states and local

school boards. That interpretation fails in light of the present

nature of the program and the specific language of the statute. In

amending the statute in 1972, Congress not only removed the

appropriations ceiling but also changed the scope of the

program. Congress expanded the program from one limited to

certain schools to “... all schools which make application for

assistance. .. .”” If Congress had intended for the states to have

the choice of which schools were to participate or not participate

in the School Breakfast Program, it would have amended

§1773(a) to read “in all schools which the states select.”

The legislative history further shows that Congress. intended

for the local school authorities to make the decision of whether to

participate in the program. For example, in debate in the passage

of the 1972 amendment, Representative Perkins, the chairman of

the House committee recommending the amendment, stated that

the amendment would require the federal agency and the states

to provide the breakfast program to every school that applies.

118 Cong. Rec. 23415 (1972). Representative Mink explained

that the amendment was intended to expand “the school

breakfast program to every school in the nation that desires to

participate... .° Jd. at 23419 (emphasis added).

Similarly, in the Senate, Senators McGovern, Hart and

Humphrey stated that the amendment made the program

available to all schools ‘desiring’ or requesting the federal

breakfast program. /d. at 28564, 28565, 28569. This intent was

also expressed by Senator Case in the committee hearings

considering the status of the breakfast program. Hearing on

Nutrition and Human Needs, 1972 Part 1: School Breakfast

Program Survey, before Senate Select Comm. on Nutrition and

Human Needs, 92d Cong., 2d Sess., at 4-6 (1972).

Congress gave the right to make the decision on the

implementation of the program to the local authorities because

Congress recognized the critical importance of local support in

implementing any food program. Indeed, Congress has often

expressed its view that the success of the various school food

programs ts attributable to leaving as many decisions as possible

to the local school boards and officials. See 112 Cong. Rec.

15283, 15286 (1966) (remarks of Senator Tower); 118 Cong.

Rec. 28595 (1972) (remarks of Senator Allen); 119 Cong. Rec.

31077 (1973) (remarks of Senator Allen). In congressional

hearings, the Department of Agriculture has pointed out the

critical role of the local level. In the 1972 hearings, Assistant

Secretary Richard Lyng testified, ““We need to recognize, of

course, that in the final analysis, it is local interest, local effort,

and local funds that are ultimate keys to the success or failure of

any federally-assisted activity.” Hearing on Nutrition and

Human Needs, 1972 Part 1: School Breakfast Program Survey,

before Senate Select Comm. on Nutrition and Human Needs,

92d Cong., 2d Sess., at 44 (1972) (emphasis added).

The Fifth Circuit’ minimized the statutory language,

mentioning that §1773(a) says “schools” not “school boards.”

The legislative history of this section shows that the language ts

consistent with the Petitioners’ interpretation, During

consideration of school lunch and child nutrition amendments in

1970, Senator McGovern urged substituting “local educational

agency” meaning school district for “school” in a number of

places in the School Lunch and Child Nutrition Acts. The Senate

Committee report recommended against this substitution,

explaining that with respect to the contracting function of the

program, the Agriculture Department already interpreted

“school” to mean the school district in considering the

contracting agency and that with respect to the local

administration of the program, the local school districts should

be permitted to decide whether to handle administrative

functions on a district-wide basis or on a school-by-school basis,

S.Rep.No. 91-641, 91st Cong., 2d Sess., 3-4 (1970). Thus, the use

of the term “school” in this act was clearly intended by Congress

to insure that the local school district governing body had

adequate administrative flexibility in regard to the food

programs.

“A committee report represents the considered and collective

understanding of those Congressmen involved in drafting and

studying proposed legislation.” Zuber v. Allen, 396 U.S. 168,

186 (1969). While amending the Child Nutrition Act in the years

since 1972, committee reports have often expressed the intent of

Congress to maintain the decision of the implementation of the

School Breakfast Program at the local level. For example, in

passage of the 1975 amendments, the Senate committee

described the administration of the Child Nutrition programs,

including the School Breakfast Program, as follows:

“The Food and Nutrition Service of the Department of

Agriculture is responsible for the national administration of

the programs. The programs are normally administered in

12 ;

cooperation with State Departments of Education, Due to

restrictions in State law and to other factors, USDA

directly administers the programs in private schools in

several States. Participation at the local level is voluntary.”

S.Rep.No. 94-259, 94th Cong., Ist Sess., at 9 (1975)

(emphasis added).

The intent of Congress was reemphasized in the recent

consideration and debate in passing the 1978 amendments to the

School Breakfast Program. During that consideration the House

committee recommended a bill that would have converted the

School Breakfast Program to a mandatory program under

specified conditions. This recommendation of the House

committee was strongly opposed by a minority report stating,

“We support a breakfast program voluntarily adopted by the

schools, and support the incentives in this bill for an expansion of

school breakfasts, but oppose making them compulsory.” H.R.

Rep.No. 95-1153, 95th Cong., 2d Sess., at 63 (1978). The Senate

committee deleted a similar proposal in the Senate bill, stating,

“It is the belief of the committee that the decision to conduct a

school breakfast’) program should be made by the local

authorities who are familiar with community needs.’ S.Rep.No.

95-884, 95th Cong., 2d Sess., 23 (1978) (emphasis added). The

Senate committee also explicitly expressed the approach to be

used to expand the School Breakfast Program. "While leaving

the decision on implementation of the program to the local

authorities, these new financial incentives will make the program

more attractive.” /d. at 20 (emphasis added).

The Senate bill maintaining the original relationship with local

authorities was passed as the 1978 amendment to the program.

On both occasions when the bill was considered by the Senate,

Senator Talmadge addressed this subject. On the first occasion,

he stated that the Senate committee believed “that the decision

to conduct a school breakfast program should be made by the

local authorities who are familiar with the needs of our

children.” 124 Cong. Ree. S11483 (daily ed. July 21, 1978),

After the House passed the Senate bill with amendments,

Senator Talmadge spoke again on this matter in support of the

bill as amended.

“Tam pleased that the House deleted the provision in their

bill that would have mandated a gradual phase-in of the

school breakfast program in certain public schools serving

poor populations.... This is a delicate question of

balancing the interests of local school authorities against

the desires of forces from outside the community. I believe

that the decision regarding whether to initiate a breakfast

program should remain with the local school authorities

and that is where S. 3085 leaves it.” 124 Cong. Rec. S19217

(daily ed. October 14, 1978).

In addition, the Fifth Circuit. did not give adequate

consideration to the specific language of the federal regulations

that a School Food Authority will apply “for any school in which

it desires to operate the School Breakfast Program.” 7 C.F.R.

§220.7(a) (emphasis added). The Fifth Circuit simply ignores this

language and distracts the reader’s attention by suggesting,

without deciding, that the regulation is merely a traffic control

device. The court attempts to justify ignoring this regulation on

the basis that state law defines the legal authority of local bodies

and that by enacting §21.914, Texas removed from GISD the

legal authority to decide to participate in the program. This

rationale merely states what Texas did. It does not explain the

legal basis for a state’s altering a federal program. Significantly,

§21.914 does not reorganize school authorities in Texas so that

GISD would no longer be a School Food Authority. Instead,

Texas attempts to withdraw from the School Food Authority

that authority granted by federal law to decide whether to initiate

the School Breakfast Program.

The right of the local authority to make this decision is

fundamental to the present structure of the School Breakfast

Program. A state’s shifting of this decision to the state level

creates a fundamental change in the federal-state-local

relationship of this federal program, justifying the grant of

certiorari to review the judgment below.

The Decision Below Will Have Significant Impact Upon and

Could Result in a Serious Hindrance in the Operation of the

School Breakfast Program.

In fiscal year 1967 when the School Breakfast Program was

initiated, 49 schools participated in the program, and the federal

obligations amounted to $573,000. Within ten years, 22,894

schools were participating in the program. In fiscal year 1977,

the number of participating children increased to over 2.56

million in the peak month, and a total of 421 million breakfasts

were served, an increase of 20 percent over fiscal year 1976. Over

85 percent of the breakfasts were served free or at a reduced price

to needy children. The federal obligation had expanded to

$144,076,000, 250 times the federal obligation for fiscal year

1967. See S.Rep.No. 95-884, 95th Cong., 2d Sess., 14, 19-20

(1978).

There are approximately 1,100 school districts in Texas

operating over 5,000 elementary and secondary schools.

National Center for Educational Statistics, Digest of

Educational Statistics 1977-1978, 12 Table 9; Dallas Morning

News, Texas Almanac, 1976-1977, 523. In 1977, the School

Breakfast Program was operated in 1,241 Texas schools.

Department of Agriculture, Food and Nutrition Service, School

Breakfast Program FY 1977, Texas (computer print-out). As of

May, 1976, only California and Puerto Rico had more schools

participating in the program than Texas and only California had

more children participating. Department of Agriculture, Food

and Nutrition Service, Breakfast Program, Mav 1976 (computer

print-out).

The authority to make the Gecision of whether to participate in

the School Breakfast Program is an important right. That

decision involves more than just a consideration of whether or

not to feed children. It involves important considerations of cost,

practicability and local demand or lack thereof. The ability to

implement the program is dependent upon the availability of the

necessary facilities. Additional facilities may be required in order

to start the program. A breakfast program may necessitate a

rescheduling of the district’s entire busing schedule. This could

mean that children who ride the school bus might have to rise

earlier and leave for school earlier in the morning. In winter

months, an earlier morning bus schedule might mean more

hazardous road conditions during days of inclement weather.

Alternatively, the rescheduling of classes and extension of the

school day in the afternoon could cause a significant disruption

of extracurricular and athletic programs. Even if these programs

can be salvaged, the change in the bus schedule would lengthen

the school day for all students who ride the bus even if they do

not wish to eat breakfast at school. Moreover, the imple-

mentation of the program could cause increased costs in

supervision and building operational costs that might not be off-

set by federal funds. See Hearings on S. 2630, S. 2809 & S. 2824

hefore the Subcomm. on Nutrition of the Senate Comm. on

Agriculture, Nutrition and Forestry, 95th Cong., 2d Sess., pt. II,

at 99, 134 (1978). That is the reason Congress placed the right to

make the decision regarding whether to implement the School

Breakfast Program with the local school authorities.

The Texas statute under the circumstances it specifies removes

the right to make that decision from the 1,100 local school

district governing bodies. Moreover, the particular

circumstances specified in the statute are not necessarily

significant. If Texas has the right to make this decision as the

Fifth Circuit has held, then it has the power to exercise that

decision in all cases.

Obviously, if Texas can remove this power from its local

school districts, so can every other state. If the other states follow

the lead of Texas, the over 20,000 local educational agencies

could lose the choice Congress gave to them. See S.Rep. No. 91-

641, Dist Cong., 2d Sess., 3 (1970). Such a change would be a

major shift in the administration and the philosophical intent of

the School Breakfast Program.

Moreover, the Fifth Circuit’s approval of Texas’

appropriation to the state-level of the decision-making power in

the School Breakfast Program could result in a serious hindrance

in the administration of the program. Allowed to make these

decisions at the state level, a state could as easily destroy the

entire School Breakfast Program as Texas altered the

cooperative federal-state-local foundation of the program. The

deleterious impact of the decision below is obscured in the

present exercise of the decision-making power by Texas because

the legislature decided this time to expand the number of schools

in Texas participating in the program.’ However, if the states are

‘The Fifth Circuit thought that the Texas Legislature’s mandate of

the School Breakfast Program would help to expand and strengthen the

program. However, persons actively involved in the area are not in

agreement with that evaluation. In regard to the proposed mandate

provision in the 1978 amendments bill, Ms. Josephine Martin, Past

President, American School Food Service Association and State

Director, Georgia Food Service Association, Atlanta, Georgia,

testified:

“We believe that such an action might very well signal the

collapse of State, Federal, and local cooperation in these

programs and might usher in a decade of decline in popular

support of school nutrition programs.

( Foomote continued on following page.)

allowed to shift the decision authority from the local level to the

state level, the states will be able to decide not only what schools

will participate, but also what schools will not participate, for the

decision involves both choices. Thus, for example, in the future,

Texas might exercise the power by deciding a school district will

not apply for the school breakfast program for any school in

which less than fifty percent of the students qualify for free or

reduced-price breakfasts, or it might decide that no school

district in Texas shall apply for the School Breakfast Program.

This example shows that allowing the states to take the initiating

decision away from the local level is antagonistic to the intent of

Congress to make the breakfast program available to all schools

that desire it. Of course, if the Texas legislature can pass a statute

requiring or prohibiting entry of local schools into the School

Breakfast Program, so could the other 49 state legislatures.”

“Mandates in the breakfast program have already been enacted in

Michigan and Ohio. In both cases I am told they have been

unsuccessful and have produced serious backlashes against school

nutrition programs. In both cases they have caused serious

changes in attitude regarding our programs and have brought

them to be seen as Federal welfare programs and not educational

programs, and in both States they resulted in very little growth in

breakfast feeding ...

**Members of the Columbus, Ohio, School Board can recount to

you the crippling effects of a mandate upon the operation of a

local school system. I think you will be disheartened to hear from

them the kind of ideological and political issues which a school

breakfast mandate injected into the operation of this community

school system.”

Hearings on S. 2630, S. 2809, and S. 2824 Before the Subcomm. on

Nutrition of the Senate Comm. on Agriculture, Nutrition and Forestry,

95th Cong., 2d Sess., pt. 1, at 254 (1978).

"The Fifth Circuit attempts to duck this mammoth problem of

allowing the implementing decision to be made at the state level by

saying in a footnote, “It follows, of course, that our decision does not

suggest that a state could constitutionally require a school or school

(Footnote continued on following page. |

Therefore, it can be seen that a fundamental concern in the

operation of the School Breakfast Program is the determination

of where the power to decide to implement such a program lies.

The action of a state to seize the authority to make this decision

from the local school authorities heralds a substantial change in

the federal-state-local relationship established by federal law.

Moreover, the decision below has profound implications beyond

the School Breakfast Program, for it authorizes a state to control

or at least modify any federal program without the authorization

of Congress.

The implications of Texas’ unilateral fundamental alteration

in the federal-state-local cooperative relationship which forms

the basis of the School Breakfast Program and the potential

hindrance it can pose for the expansion of the program require

this Court’s review before other states follow Texas’ lead.

There are or were at least four other states that have mandated

specified schools to provide a breakfast program; however, it

does not appear that those states — Massachusetts, Michigan,

New York and Ohio — have taken the same approach as Texas.

It appears from the text of the statutes of Massachusetts (Mass.

Ann. Laws ch. 15, §1G (1973)), Michigan (Mich. Comp. Laws

Ann §380.1272a(2) (Supp. 1978), and New York (N.Y. Educ.

§2554 note (McKinney Supp. 1977-1978)), that the schools are

not required to participate in the federal School Breakfast

Program, although certain schools are required under stated

conditions to establish a breakfast program for their students. In

these states, a school apparently could comply with the state law

board to reject the breakfast program.” 588 F.2d at 1972 n.26 (court's

emphasis). The Fifth Circuit gives no explanation of this rather

remarkable statement. Whoever has the choice can decide to

participate or not to participate in the program. The conflict with the

intent of the federal law presented by the state deciding which schools

will participate in the program will not go away simply because the

Fifth Circuit wishes it would.

by establishing a local breakfast program, similar to GISD’s

local lunch program, and not participate in the federal program.

Therefore, local authorities would still be able to make the choice

regarding participation in the federal School Breakfast Program,

although they have additional incentives to join. Although the

Ohio statute (Ohio Rev. Code §3313.813 (Supp. 1977)) requires

affected boards of education to establish breakfast programs, it

is not clear from the text whether an affected local board of

education has lost its right to make the decision regarding

participation in the federal School Breakfast Program.

Petitioners are unaware of any reported cases interpreting these

statutes to alter the federal law as the Texas statute does.

There is a significant legal difference in these two approaches.

Although a mandated state breakfast program may give a local

school district additional incentive for participating in the School

Breakfast Program, it does not alter the frame-work of the

federal program. However, there can also be a significant

practical difference. When a state mandates a state program, it

will very likely help to fund the program. See N. Y. Educ. §2554

note, §3 (McKinney Supp. 1977-1978). However, when Texas

simply pre-empted the decision regarding participation in the

federal program, it saw no need to provide any state funds. Thus,

there may be a financial incentive to states considering

mandating schools to offer a breakfast program to follow Texas’

lead of simply pre-empting the decision to participate in the

federal program instead of creating and funding a state

program.

As previously noted, once a state pre-empts the decision-

making power, it can decide which schools will not participate in

‘The Food Research and Action Center (FRAC) filed an amicus

curiae brief in the Fifth Circuit. In its brief FRAC stated that bills

establishing state breakfast mandates would be introduced in Florida,

Louisiana, and Maryland.

the federal program as well as which schools will be required to

participate. Moreover, even if the states always exercised the

choice to expand the program, the mandating approach could

seriously set the program back. As shown by congressional

testimony, mandating a breakfast program can change the public

perception of the program and undermine the local support that

can be obtained by the federally required informational efforts.

Sée note 3, supra. If local support is undermined, schools could

very well stop participating if the mandates are terminated either

by the state revoking them® or by the courts subsequently

determining that state mandates like that of Texas conflict with

the federal law. Once local support has been undermined, it is

likely that it would be more difficult to get schools to participate

than if states had emphasized the educational effort in

cooperation with the Department of Agriculture as required by

the federal statute.

The expanding interest shown in state mandated breakfast

programs in schools makes it all the more urgent that this Court

decide this important issue before other states follow the lead of

Texas.

The Decision Below Conflicts with Principles in

Decisions of This Court and Other Courts.

The analysis used by the Fifth Circuit to review the validity of

the Texas statute conflicts with principles set forth in prior

opinions by this Court and other courts. The Fifth Circuit based

"In its amicus brief FRAC reported that Massachusetts has repealed

its mandated program in its state Budget for 1979. In a footnote in

Charette v. Bergland, supra, 457 F.Supp. at 1207, n.14, the court states

that South Carolina repealed a statute mandating breakfast programs

in every school and the result was a decrease in pafticipation.

its affirmance of the Texas statute upon its evaluation that the

federal legislation does not indicate a distrust of state

governments and that the Texas statute does not clash with the

intent of Congress to expand the School Breakfast Program.

This analysis might be satisfactory if this case involved a

standard pre-emption question where the state was implementing

its own separate program. However, in this case Texas is

attempting to regulate a federal statutory program.

This Court has repeatedly held that when the federal

government establishes a federal program to promote the general

welfare, the federal government's terms and conditions for the

disbursement of federal money control, and that inconsistent

state laws are invalid. King v. Smith, 392 U.S. 309, 333 n. 34

(1968); Helvering v. Davis, 301 U.S. 619, 645 (1937).

The Court’s decisions in the several A.F.D.C. program cases

show that when a state participates in a voluntary federal

program, even in those instances where the state is given a great

deal of discretion, it must follow the federal provisions unless

authorized otherwise by the federal statute. See King v. Smith,

supra, Townsend v. Swank, 404 U.S. 282 (1971); Miller. \.

Youakim, 99 S.Ct. 957 (1979).

When a state participates in a federal program, its authority

within the federal program, as opposed to a concurrent program

of its own, comes from the federal law. In the insiant case, the

Fifth Circuit fails to cite any provision of §1773 which gives the

States the right to ignore and abandon their requirement to

provide an informational program about the benefits of the

School Breakfast Program to the local school districts and to

substitute a state mandate to the local school disiricts in lieu of

the choice granted the local districts by the federal statute. This

failure is not due to a mere oversight; instead, it is due to the

absence of any such provision.

oh)

In a case involving a different federal program, the District of

Columbia Circuit has applied the principle that if the federal law

indicates which entity is to make decisions in a voluntary federal

program, a state desiring to participate in the program must

allow the entity to make those decisions. See County of Los

Angeles, Cal. v. Adams, 574 F.2d 607 (D.C. Cir. 1978). In

Adams, the D.C. Circuit correctly held that the participating

states could designate the composition of the metropolitan

planning organization, but once that was done, the federal law

gave the metropolitan planning organization the power to select

the highway projects for which federal funds would be sought.

The state was bound by federal law if it wished to participate in

the program.

In contrast, in the instant case, the Fifth Circuit has approved

Texas’ alteration of the federal law (1) by changing the decision-

making body from the one designated by the federal law, the

school district governing body, to one designated by the state,

and (2) by scrapping the Federal requirement of educating the

local districts about the merits of the Program. The Fifth Circuit

thereby condones the Texas Legislature's decision to remove the

local element of the federal-state-local cooperation from the

equation by deleting both the local choice and the educational

program in one shot.

Moreover, the School Breakfast Program is available to

private as well as public schools.” Significantly, the Texas

Legislature did not attempt to require private schools to

participate in the School Breakfast Program if they met the

circumstance stated in §21.914. Indeed, the state has never even

contended that it has the right under the School Breakfast

Program to direct private schools to participate in the program.

Obviously, it is the local authorities of the private school who

"42 U.S.C. §1784(c) defines “school” as “any public or nonprofit

private school of high school grade or under. . . .”

decide whether it will participate and not the state. But the

federal law does not distinguish between public and private

schools. When a bill proposing a mandated school breakfast

program was recommended by the House Committee on

Education and Labor, the minority view pointed out that by the

exemption of private schools from the proposed mandate,

Congress would be “for the first time treating public and private

schools ditferently in this legislation.” H.R.No. 95-1153, pt. 1,

95th Cong., 2d Sess., at 63 (1978) (minority views). Since a

mandate was subsequently deleted from the Child Nutrition

Amendments of 1978, Congress did not begin to treat public and

private schools differently. Thus, there is no authority in the

federal statute authorizing the states to treat the public and

private schools differently by removing the right to decide

whether to participate from the local authorities of the public

schools.

The conflict in the approaches of these cases casts doubt upon

the requirement of a state participating in a federal program to

comply with the federal concept of the program if it has an

inherent power to modify those portions of the federal program

with which it disagrees.

Although considering different aspects of the School

Breakfast Program, district courts in two other circuits have held

that Congress intended the School Breakfast Program to be

voluntary. Charette v. Bergland, 457 F.Supp. 1197 (D.R.1.

1978); Torres v. Butz, 397 F.Supp. 1015 (N.D. IIL. 1975). Indeed,

the Jorres court held that the local board of education was the

entity to make the decision to participate.

The Jorres case is not identical to the instant one because that

court was considering whether the decision could be made by the

individual school principals on a school-by-school basis. This

poses another conflict with the Fifth Circuit's decision approving

the Texas statute. The Texas statute provides that school districts

must apply for the school breakfast program only for those

schools which meet the statutory criteria. However, the 7orres

court held that a school district board that elects to participate in

the breakfast program, must make that program available to all

the children in the district that qualify for a free or reduced-price

breakfast. The resolution of this conflict is extremely important

in the administration of the breakfast program because it

governs whether the governmental body deciding whether to

participate in a school breakfast program can make that decision

ona school-by school basis (thus taking into account the number

of students qualifying for free or reduced-price breakfasts,

transportation difficulties, and the facilities or the lack thereof),

or whether it is limited to an all-or-nothing choice for the entire

district. The scope of the choice available may well influence the

decision of whether or not to participate in the program.

CONCLUSION

For these reasons, a writ of certiorari should tssue to review

the judgment and opinion of the Fifth Circuit.

Respectfully submitted

Ya p ")

AWM1VG

LUNA

EARI

LUNA, Murto & VorPAHl

2416 LTV Tower,

1525 Elm Street

Dallas, Texas 75201

214/747-1582

Counsel For Petitioners

CERTIFICATE OF SERVICE

| hereby certify that | am a member of the Bar of the Supreme

Court of the United States, that | am one of the attorneys of

record for Petitioners herein, and that on this the e.“day of

y ont’ 1979, three copies of the Petition for Writ) of

Certiorari were mailed, first class postage prepaid, to the

Honorable Mark White, Attorney General of Texas,

ATTENTION: Nathan Johnson, Assistant Attorney General,

Supreme Court Building, P.O. Box 12548, Austin, Texas, 78711,

Counsel for the Respondents. I further certify that all parties

required to be served have been served.

ee | ;

EARL LUNA

2416 LTV Tower

1525 Elm Street

Dallas, Texas 7520]

214/747-1582

Counsel For Petitioners

A-!

APPENDIX A

CONSTITUTIONAL PROVISIONS,

STATUTES AND REGULATIONS

CONSTITUTION OF THE UNITED STATES

Article VI, Clause 2

This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof; and all Treaties made, or

which shall be made, under the Authority of the United States,

shall be the supreme Law of the Land; and the Judges in every

State shall be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.

A P Pp E N D I X | FEDERAL STATUTES

42 U.S.C. §1773

School Breakfast Program

Establishment; authorization of appropriations

(a) There ts hereby authorized to be appropriated such sums

as are necessary to enabie the Secretary to carry out a program

to assist the States through grants-in-aid and other means to

Initiate, Maintain, or expand nonprofit breakfast programs in all

schools which make application for assistance and agree ty carry

out a nonprofit’ breakfast’ program in accordance with this

chapter. Appropriations and expenditures for this chapter shall

be considered Health, Education, and Welfare functions for

budget purposes rather than functions of Agriculture.

A-2

Apportionment of funds to States; national average

payment for breakfasts, reduced price breakfasts, and free

breakfasts; additional payments, severe need: maximum

payment for free and reduced price breakfasts

(byl) Of the funds appropriated for the purposes of this

section, the Secretary shall for the fiscal year ending June 30,

1973, (1) apportion $2,600,000 equally among the States other

than Guam, the Virgin Islands, American Samoa, and the Trust

Territory of the Pacific Islands, and $45,000 equally among

Guam, the Virgin Islands, American Samoa, and the Trust

Territory of the Pacific Islands, and (2) apportion the remainder

among the States in accordance with the apportionment formula

contained in section 1753 of this title. For each fiscal year

beginning with the fiscal year ending June 30, 1974, the

Secretary shall make breakfast assistance payments, at such

times as he may determine, from the sums appropriated therefor,

to each State educational agency, in a total amount equal to the

result obtained by (1) multiplying the number of breakfasts

(consisting of a combination of foods which meet the minimum

nutritional requirements prescribed by the Secretary pursuant to

subsection (e) of the this section) served during such fiscal year to

children in schools in such States which participate in the

breakfast program under this section under agreements with such

State educational agency by a national average breakfast

payment prescribed by the Secretary for such fiscal year to carry

out the purposes of this section; (2) multiplying the number of

such breakfasts served free to children eligible for free breakfasts

in such schools during such fiscal year by a national average free

breakfast payment prescribed by the Secretary for such fiscal

year to carry out the purposes of this section; and (3) multiplying

the number of reduced price breakfasts served to children eligible

for reduced price breakfasts in such schools during such fiscal

year by a national average reduced price breakfast payment

prescribed by the Secretary for such fiscal year to carry out the

A-3

provisions of this section: Provided, That in any fiscal year the

aggregate amount of the breakfast assistance payments made by

the Secretary to each State educational agency for any fiscal year

shall not be less than the amount of the payments made by the

State educational agency to participating schools within the

State for the fiscal year ending June 30, 1972, to carry out the

purposes of this section.

(2)(A) The Secretary shall make additional payments for

breakfasts served to children qualifying for a free or reduced-

price meal at schools that are in severe need.

(B) The maximum payment for each such free breakfast shall

be the higher of —

(1) the national average payment established by the

Secretary for free breakfasts plus 10 cents, or

(11) 45 cents, which shall be adjusted on a semiannual

basis each July | and January | to the nearest one-fourth

cent in accordance with changes in the series for food away

from home of the Consumer Price Index published by the

Bureau of Labor Statistics of the Department of Labor for

the most recent six-month period for which such data are

available, except that the initial such adjustment shall be

made on January |, 1978, and shall reflect the change in the

series of food away from home during the period

November |, 1976, to October 31, 1977.

breakfast shall be five cents less than the maximum payment for

each free breakfast as determined under clause (B) of this

paragraph.

A-4

Disbursement of apportioned funds by State;

preference for schools in poor economic areas,

for students traveling long distances daily,

and for schools for improvement of nutrition and dietary

practices of children of working mothers

and from low-income families

of this section shall be disbursed by the State educational agency

to schools selected by the State educational agency to assist such

schools in financing the costs of operating a breakfast program

and for the purpose of subsection (d) of this section.

Disbursement to schools shall be made at such rates per meal or

on such other basis as the Secretary shall prescribe. In selecting

schools for participation, the State educational agency shall, to

the extent practicable, give first consideration to those schools

drawing attendance from areas in’ which poor economic

conditions exist, to those schools in) which a substantial

proportion of the children enrolled must travel long distances

daily, and to those schools in which there is a special need for

improving the nutrition and dietary practices of children of

working mothers and children from low-income families.

Breakfast assistance disbursements to schools under this section

may be made in advance or by way of reimbursement in

accordance with procedures prescribed by the Secretary.

Severe need assistance; eligibility standards;

receipt of lesser of operating costs of breakfast program

or meal reimbersement rate

(d) Each State educational agency shall establish eligibility

standards for providing additional assistance to schools in severe

need, which shall include those schools in which the service of

breakfasts is required pursuant to State law and those schools

(having a breakfast program or desiring to initiate a breakfast

program) in which, during the most recent second preceding

A-5

school year for which lunches were served, 40 percent or more of

the lunches served to students at the school were served free or at

a reduced price and in which the rate per meal established by the

Secretary is insufficient to cover the costs of the breakfast

program. Such eligibility standards shall be submitted to the

Secretary for approval and included in the State plan of child

nutrition Operations required by section 1759a(e\(1) of this title.

Pursuant to those State eligibility standards, a school, upon the

submission of appropriate documentation about the need

circumstances in that school and the school’s eligibility for

additional assistance, shall be entitled to receive 100 percent of

the operating costs of the breakfast program, including the costs

of obtaining, preparing, and serving food, or the meal

reimbursement rate specified in paragraph (2) of subsection (b)

of this section, whichever is less.

Nutritional requirements; service free or at reduced price

breakfast) program under this. section shall consist’ of a

combination of foods and shall meet minimum nutritional

requirements prescribed by the Secretary on the basis of tested

nutritional research. Such breakfasts shall be served free or ata

reduced price to children in school under the same terms and

conditions as are set forth with respect to the service of lunches

free or at a reduced price in section 1758 of this title,

Nonprofit private schools

(f) For the fiscal year ending June 30, 1973, any withholding

of funds for and disbursement to nonprofit private schools shall

be effected in the manner used prior to such fiscal year.

Beginning with the fiscal year ending June 30, 1974, the

Secretary shall make payments from the sums appropriated for

any fiscal year for the purposes of this section directly to the

A-6

schools (as defined in section 1784(c) of this tithe which are

private and nonprofit as defined in the last sentence of section

1784(c) of this title) within a State, that participate in the

breakfast program under an agreement with the Secretary, for

the same purposes and subject to the same conditions as are

authorized or required under this section with respect to the

disbursements by State educational agencies.

Expansion of program

(g) As a national nutrition and health policy, it is the purpose

and intent of the Congress that the school breakfast program be

made available in all schools where it is needed to provide

adequate nutrition for children in attendance. The Secretary is

hereby directed, in cooperation with State educational agencies,

to carry out a program of information in furtherance of this

policy. Within 4 months after October 7, 1975, the Secretary

shall report to the committees of jurisdiction in the Congress his

plans and those of the cooperating State agencies to bring about

the needed expansion in the school breakfast program.

42 U.S.C.§1779

Rules and regulations; transfer of funds from one

program to another; special projects

The Secretary shall prescribe such regulations as he may deem

necessary to carry out this chapter and the National School

Lunch Act, including regulations relating to the service of food in

participating schools and service institutions in competition with

the programs authorized under this chapter and the National

School Lunch Act. Such regulations shall not prohibit the sale of

competitive foods approved by the Secretary in food service

facilities or areas during the time of service of food under this

chapter or the National School Lunch Act if the proceeds from

A-7

the sales of such foods will inure to the benefit of the schools or of

organizations of students approved by the schools. In such

regulations the Secretary may provide for the transfer of funds

by any State between the programs authorized under this chapter

and the National School Lunch Act on the basis of an approved

State plan of operation for the use of the funds and may provide

for the reserve of up to | per centum of the funds available for

apportionment to any State to carry out special developmental

projects.

FEDERAL REGULATIONS

7 C.F.R. Part 220

School Breakfast Program

Definitions.

For the purposes of this part the term:

(w) “School Food Authority” means the governing body

which is responsible for the administration of one or more

schools and which has legal authority to operate a breakfast

program therein.

§220.7

Requirements for participation

(a) The School Food Authority shall make written

application to the State agency, or FNSRO where applicable, for

any school in which it desires to operate the School Breakfast

Program, if such school did not participate in the Program in the

A-8

prior fiscal year. The School Food Authority shall also submit

for approval, either with the application or at the request of the

State ageney, or FNSRO where applicable, a tree and reduced

price policy statement ino accordance with Part 245 of this

chapter. A School Food Authority which simultaneously makes

appheation for the National School Lunch Program and the

School Breakfast Program shall submit one free and reduced

price policy statement which shall) provide that the terms,

conditions, and cligibility: eriteria set) forth ino such) policy

statement shall apply to the service of tree and reduced price

lunches and to the service of tree and reduced price break fasts. 1,

at the time application is made for the School Breakfast

Program, a School Food Authority has an approved free and

reduced price policy statement on file with the State agency, or

ENSRO where applicable, for the National School Lunch

Program, tt need only confirm ino writing that such approved

policy statement will also apply to the operation of its School

Breakfast) Program, Applications for the School Breakfast

Program shall not be approved in the absence of an approved

free and reduced price policy statement.

TEXAS STATUTES

Texas Education Code

S21.914

Hf at least LO percent of the students enrolled in one or more

schools in a school district are eligible for free or reduced-price

breakfasts under the national school breakfast program provided

for by the Child Nutrition Act of 1966 (42 U.S.C. Subsection

1773), the governing board of the district shall participate in the

program and make the benefits of the program available to all

eligible students in said schools.

§23.26

(a) The trustees shall constitute a body corporate and in the

name of the school district may acquire and held real and

personal property, sue and be sued, and receive bequests and

donations or other moneys or funds coming legally into ther

hands.

(b) The trustees shall have the exclusive power to manage and

yovern the public free schools of the district.

whether real or personal, shall be vested in the trustees and ther

successors in office.

(d) The trustees may adopt such rules, regulations, and by

laws as they may deem proper.

B-|

APPENDIX B

ROGERS v. BROCKETTE 1057

Cite as 588 F.2d 1057 (1979)

Dr. RONNIE ROGERS, ET AL.,

Plaintiffs-A ppellants,

Dr. M. L. BROCKETTE, ET AL.,

Defendants-A ppellees.

No. 78-2505.

United States Court of Appeals,

Fifth Circuit.

February 2, 1979.

School district brought action against state and others

challenging constitutionality of state statute which required

certain school districts to participate in subsidized breakfast

program. The United States District Court for the Northern

District of Texas, Robert W. Porter, J... granted summary

judgment for defendants, and school district appealed. The Court

of Appeals, Goldberg, Circuit Judge, held that: (1) rule against

asserting third parties’ claims did not bar school district from

bringing action; (2) fact that state could defeat any judgment

rendered in action simply by abolishing school district did not

render court's opinion in the action advisory or hypothetical and

would not deter court from allowing school district to bring the

action; (3) school district was not precluded from bringing action

B-2

against state that created it, and (4) state statute which required

certain school districts with a substantial number of children

from poorer families to participate in federally subsidized

breakfast program for school children was not inconsistent with

federal school breakfast statutes and regulations and was not

unconstitutional under the supremacy clause, since Congress, in

establishing the federal breakfast program, indicated a trust in

states generally, a desire not to limit states’ control over the

breakfast program, and indicated that state efforts to expand the

program to reach poorer children were particularly favored.

Affirmed.

1058

B-3

588 FEDERAL REPORTER, 2d SERIES

ROGERS v. BROCKETTE

Cite as 588 F.2d 1057 (1979)

i. Federal Civil Procedure o> 103

Federal Courts c= 12

In order to sue in federal court, plain-

tiff must allege a distinct and probable

injury to himself, plaintiff must ordinarily

assert his own legal rights and interests and

cannot rest his claim to relief on legal

rights or interests of third parties, and

claim presented by plaintiff must present a

genuine, live case or controversy under Ar-

ticle III. U.S.C.A.Const. art. 3, § 1 et seq.

2. Federal Civil Procedure “103

In theory, a principal purpose of stand-

ing doctrine is to prevent the inappropriate

party from forcing a judicial resolution of

an issue.

3. Federal Civil Procedure e103

One reason to confer standing on a

party is to encourage court to approach the

case from that party’s point of view; the

rule against asserting third parties’ rights is

intended partly to insure that court will

approach case from point of view of those

whom Congress wants to aid or protect or

those whose rights Congress wants to vindi-

cate.

B-4

4. Federal Civil Procedure e103

The rule against asserting third parties’

claims did not bar school district from

bringing suit challenging state statute

which required certain school distriets to

participate in subsidized breakfast program,

since school district alleged that Congress

had made it the proper body to decide at

least some significant questions under the

breakfast program, and since the most ap-

propriate perspective for court to adopt in

focusing on the issues presented by the

action was that of the school district. V.T.

(A, Education Code § 21.914.

5. Federal Courts c= 12

A federal court may not resolve hypo-

thetical or contingent questions. U.S.C.A.

Const. art. 3, § 1 et seq.

6. Federal Civil Procedure &> 103

Injured party cannot sue unless exer-

cise of court’s remedial powers would re-

dress the claimed injuries; there must be a

substantial probability that, if court affords

relief requested, plaintiffs’ legal injuries

will be remedied.

7. Elections @>12 |

Municipal Corporations ®=27

State's decision to abolish or to reorga-

nize municipality cannot violate a particular

constitutional guarantee like the Fifteenth

B.S

Amendment, but the mere act of abolishing

or reorganizing a municipality does not by

itself invoke any constitutional provision.

U.S.C.A.Const. Amend. 15.

8. Federal Courts 13

Fact that state could defeat any judg-

ment rendered in school district’s action

challenging state statute requiring certain

school districts to participate in subsidized

breakfast program simply by abolishing the

school distriet did not render court's opinion

in the action advisory or hypothetical and

would not deter court from allowing school

district to bring the action. U.S.C.A.Const.

art. 3, § 1 et seq.

9. Federal Courts S12

Federal court may not decide a case

unless it presents a real and substantial

controversy or a case in which one party has

no active participation and over which it

has exercised no control. U.S.C.A.Const.

art. 3, § 1 et seq.

10. Schools and School Districts e114

Both legally and practically, school dis-

trict was sufficiently independent of state

to bring suit against state challenging state

statute requiring certain school districts to

participate in subsidized breakfast program.

11. Schools and School Districts c114

School district was not precluded from

bringing action ayainst state that created it

Heo

inorder to challenge statute which required

certamn school districts lo participate in sub

silized breakfast: program

12. States *°4.15

State statute which required certain

school districts with a substantial number

of children from poorer families to partier

pate in federally subsidized breakfast pro

gram for school children was not inconsist-

ent with federal school breakfast statutes

and regulations and was not unconstitution-

al under the supremacy clause, since Con-

gress, in establishing the federal breakfast

program, indicated a trust in states general.

ly, a desire not to limit state's control over

the breakfast program, and indicated that

state efforts to expand the program to

reach poorer children were particularly fa-

vored. Child Nutrition Act of 1966, §§ 4,

A(n, c), 42 US.C.A. §§ 1773, 1773(a, ¢); V-T.

C.A., Edueation Code § 21.914; USCA,

Const. art. 6, el. 2.

Karl Luna, Thomas V. Murto, III, Dallas,

Tex, for plaintiffs-appellants,

John 1. Hill, Atty. Gen., Susan Dasher,

Nathan Johnson, David M. Kendall, Jr,

Robert Steve Bickerstaff, Jr, Asst. Attys.

Gen., Austin, Tex., for defendants-appel-

lees.

Paula Roberts, Roger Schwartz, Ronald

Pollock, Food Research and Action Center,

he?

Washington, D.C, amicus curiae, for Food

Research and Action Center

Appeal from the United States District

Court for the Northern Distriet of Texas

Refore SKELTON,® Semor Judge and

GOLDBERG and FAY, Circuit Judges

GOLDBERG, Circuit Judge:

Since 1966 the federal government has

subsidized breakfasts for school children.

Participation in this school breakfast pro-

gram is voluntary, but Congress left it un-

clear whether the choice to participate is to

be made by the individual school, the local

school board, or the state. A Texas state

statute requires certain school districts to

participate, One of those districts, the Gar-

land Independent Sehool Distriet (GISD),

resisted and filed this suit in federal district

court for declaratory and injunctive relief,

GISD named state education authorities: as

defendants and claimed that the Texas stat-

ule is unconstitutional because it conflicts

with the federal program,

The district court granted summary judg-

ment for the defendants, and GISD appeals.

We are faced with a question of standing as

well as the substantive issue of whether the

Texas statute violates federal law.

* Senior Judpe, United States Court of Claims,

sitting by designation

hie!

The school breakfast program is one of

several federal programs! designed to im-

prove the nutrition of school children, It is

administered by the Department of Agri-

culture, See 42 U.S.C. §§ 1771, 1779. Par-

ticipating schools must agree to abide by

several regulations governing the quality

and availability of the breakfasts. See gen-

erally 7 CFR. § 220.8. Children from poor-

er famihes are eligible to receive the break-

fasts free or at a reduced price. See 7

C.F.R. §§ 220.19, 245.1 245.11. A partici-

pating school receives a subsidy for each

breakfast it serves; free breakfasts, natu-

rally, are subsidized at a higher rate than

reduced price or full-price breakfasts. See

T CARR. § 220.9.

Federal law does not require any school,

school district, or stale to participate in the

breakfast program. But in 1977, Texas en

acted a statute, § 21.914 of Tithe 2 of its

Mducation Code, providing:

If at least 10 percent of the students

enrolled in one or more schools in a school

district are eligible for free or reduced-

price breakfasts under the national school

1. See, e pg, 42 USC. §§ 1751 1769a (school

lunch program), id. at § 1772 (special milk

program), id. at § 1773 (school breakfast pro-

gram)

breakfast program . the govern-

ing board of the district shall participate

in the program and make the benefits of

the program available to all eligible stu-

dents in said schools,

GISD does not currently serve breakfasts in

its schools and does not wish to subseribe to

the federal breakfast program. Section 21.-

914, however, would require GISD to serve

federally subsidized breakfasts in at least

twenty-two of its schools. GISD says that

in order to do so it would have to spend

approximately $26,000 to modify its build-

ings and purchase new equipment, and then

spend an additional $114,000 annually for

salaries und utilities, These expenses, it

says, would not be covered by federal reim-

bursements?

GISD claimed that § 21.914 is void under

the supremacy clause beeause it conflicts

with the statutes establishing the federal

school breakfast program and with regula-

tions issued pursuant to those statutes.

Specifically, GISD says that the state stat-

ute, mandating the participation of certain

school distriets, conflicts with the federal

statute and regulations, which, according to

GISD, give it the right to refuse to partici

pate. The members of GISD Board of

Trustees in their official capacities joined in

the suit, as did several taxpayers in’ the

2. See footnote 3 mitra

B10

Garland School District. The United States

District Court for the Northern District of

Texas granted summary judgment for the

defendants. It held that none of the plain-

Liffs had standing to bring the suit; it also

ruled that there was no conflict between

§ 21.914 and the federal program. For

reasons we give in the next section we

believe that plaintiff GISD ‘has standing.

Since the distriet court had jurisdiction over

GISD's claim? we can reach the merits

without déciding whether the suit’ could

have been brought by taxpayers of the

GISD or by members of the GISD board of

trustees suing in their official capacities.

Qn the merits we affirm the district court's

decision,

Texas asserts that GISD has no-standing

to bring this suit. Texas relies entirely on a

3. GISD claims that. participating in the pro-

gram will force it to spend well over $10,000 on

equipment, utilities, and additional salaries.

Since the federal yovernment will not necessar

ily reumburse GISD for those expenses, see 42

U.S.C. 9§ 1773(d), 1774, we cannot say “to a

legal certainty,” St Paul Mercury Indemn. Co.

v. Red Cab Co,, 303 US. 283, 289, 58 S.Ct. 5R6,

82 L.Ed. 845 (1938), that $10,000 or less is in

controversy. Thus, the district court had juris-

diction over GISD's claim. 28 U.S.C. § 1331(a).

See also Opelika Nursing Home, Inc. v. Rich-

ardson, 448 F.2d 658, 663 (5th Cir. 1971).

Bet

line of cases which, it claims, hold that a

municipality has no standing to sue the

state of which it is a creature, see, e. g.,

Williams v. Mayor of Baltimore, 289 U.S.

36, 40, 53 S.Ct. 431, 77 L.Ed. 1015 (1933);

City of Trenton v. New Jersey, 262 US.

182, 187, 43 S.Ct. 534, 67 L.Ed. 937 (1923),

and argues that these decisions require us

to deny standing to a political subdivision

attempting to sue the state that created it.

But before we can discuss these decisions,

we must decide whether GISD can bring

this suit under the more general principles

developed by the Supreme Court to govern

standing in all federal cases.

{1) Three of those principles are partic-

ularly important here. First, in order to

sue in federal court, a plaintiff must allege

“a distinct and palpable injury” to itself.

FE. g., Warth v. Seldin, 422 U.S. 490,501, 95

S.Ct. 2197, 45 1. Bd.2d 343 (1975). Seeond,

ordinarily a plaintiff “must assert his own

legal rights and interests, and cannot rest

his claim to relief on the legal rights or

interests of third parties.” Id. at 499, 95

S.Ct. at 2205. Third, a claim must present

Ye i

B-12

a genuine, live case or controversy * under

Article III.* In this case GISD has alleged

$26,000, plus $114,000 annually, worth of

“threatened or actual injury,” Linda R.S. v.

Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146,

35 L.Ed.2d 536 (1978). This satisfies the

first requirement, but the other two criteria

pose more difficult problems.

It might be argued, for « smple, that

GISD is asserting not its ow~ © nts but the

rights of its trustees, who a ‘wally third

parties. GISD seems to assert, and can

4. Depending on how broadly it is interpreted,

this requirement is either identical with or an

aspect of the rule that a case must be “‘justicia-

ble.” See generally Flast v. Cohen, 392 U.S.

83, 88 S.Ct. 1942, 1949-50, 20 L.Ed.2d 947

(1968). Standing is also an aspect of justicia-

bility. Id. at 1950.

5. These three criteria, among others, were in

effect specified by the Supreme Court in its

most recent substantial treatment of standing.

Duke Power Co. v. Carolina Environmental

Study Group, Inc., —-- U.S. -----, 98 S.Ct. 2620,

2630. 34, 57 L.Ed.2d 595 (1978). To be precise,

the Court made explicit the constitutional re-

quirement of injury in fact and the “general

prudential” rule that a party can usually assert

only its own claims. Id. at 2631, 2634. Instead

of speaking of the need for a genuine case or

controversy, however, it said that a plaintiff

must establish a reasonable “causal connection

between the claimed injury and the challenged

conduct,” id. at 2630. As we discuss, this is a

variation of the requirement of a real contro-

versy. See p. 1063 and n. 12 infra.

B-13

plausibly assert,® only one right allegedly

arising under the federal breakfast stat-

utes—the right to decide, on the local level,

whether to accept the breakfast program.

This right, instead of belonging to the

GISD itself, may belong to the members of

the GISD board of trustees; there is some

authority that members of a governmental

body have an “interest in maintaining the

effectiveness of their votes,” Coleman v.

Miller, 307 U.S. 433, 438, 59 S.Ct. 972, 975,

83 L.Ed. 1385 (1939), which entitles them to

sue if the body is deprived of some lawful

prerogative. See id. (state legislators);

Kennedy v. Sampson, 167 U.S.App.D.C. 192,

511 F.2d 430 (1974) (United States Sena-

tors). See also Board of Educ. v. Allen, 392

U.S. 236, 241 n.5, 88 S.Ct. 1923, 20 L.Ed.2d

1060 (1968) (school board members’ oath to

support Constitution gives them standing to

challenge constitutionality of statute they

must administer). If this right does belong

solely to the members of the GISD board of

6. See note 9 infra. If GISD claimed that the

federal statutes are intended to protect school

districts against possible expenses resulting

from the state's imposing the program, it would

be asserting its own right to such protection.

But as our discussion of the merits suggests,

see Part Ill infra, that claim is far weaker than

the claim that Congress intended simply to

protect the right to decide whether to accept

the program.

B-14

trustees, the GISD itself ordinarily 7 would

be barred from asserting it by the principle

that a party can assert only its own claims

and not those of a third party.

[2] We believe, however, that the poli-

cies underlying this principle dictate that

the GISD itself be allowed to assert the

supposed right to decide whether to accept

7. There are some exceptions to this principle

that a litigant can assert only its own claims

and not those of a third party, see, e. g., Single-

ton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49

L.Ed.2d 826 (1976), but we need not decide if

any are applicable here.

8. This requirement serves much the same func-

tion as the rule, apparently applicable at least

in determining standing under § 10(a) of the

Administrative Procedures Act, 5 U.S.C. § 702,

that a complaining party has standing if ‘the

interest sought to be protected by the com-

plainant is arguably within the zone of interests

to be protected or regulated by the statute or

constitutional guarantee in question.” Associ-

ation of Data Processing Serv. Orgs., Inc. v.

Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25

L.Ed.2d 184 (1970). Also, as the Supreme

Court has noted, Duke Power Co. v. Carolina

Environmental Study Group, —— U.S. ——-, 98

S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978), the

limit on asserting third parties’ claims “bear[s]

some resemblance” to the requirement, applied

only in taxpayers’ suits, id. at 2633-34, that a

plaintiff show a “nexus” between its injury and

the legal right it asserts. See Flast v. Cohen,

392 U.S. 83, 102, 88 S.Ct. 1942, 20 L.Ed.2d 947

(1968).

5-15

the breakfast program. For example, one

reason for prohibiting a litigant from as-

serting another person’s rights is to ensure

that the inappropriate party cannot force

an issue to be decided in court, or, as the

Supreme Court has said, to “avoid

the adjudication of rights which those not

before the Court may not wish to assert.”

Duke Power Co. v. Carolina Environmental

Study Group, --- U.S. ——, 98 S.Ct. 2620,

2634, 57 L.Ed.2d 595 (1978). For better or

worse, it is a premise of the federal judicial

system that not all disputes. are to be re-

solved in court. And this premise suggests

that if a dispute can be resolved in some

other way to the satisfaction of those most

concerned, that resolution should not be up-

set by a court. The limits on asserting

third parties’ rights ensure that such a reso-

lution will not be upset by those whom the

legislature was not interested in protecting.

Cf. Stewart, The Reformation of American

Administrative Law, 88 Harv.L.Rev. 1667,

1735 -36 (1975) (requirement of an actual

injury protects such resolutions from being

upset by those who are not affected at all).

Of course, these principles do not excuse or

justify a narrow and cramped approach to

standing that excludes persons who are en-

tilled to relief and can gain it only in a

court. And in many cases it will be appro-

priate, for a variety of reasons, to permit a

B-16

litigant to assert another party’s rights.

See generally Note, Standing to Assert

Constitutional Jus Tertii, 88 Harv.L.Rev,

423 (1974). In theory, however, a principal

purpose of standing doctrine is to prevent

the inappropriate party from forcing a judi-

cial resolution of an issue.

When we apply this theory to GISD’s

claim we are compelled to conclude that the

GISD is an appropriate party to force a

judicial resolution of the issue it raises.

GISD alleges that Congress has made it the

proper body to decide at least some signifi-

cant questions under the breakfast pro-

gram. This is not a frivolous allegation, so

for the purposes of deciding this prelimi-

nary question of standing we must assume

that it is correct.® If Congress did repose

9. In Association of Data Processing Serv. Orgs.

v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L-Ed.2d

184 (1970), the Supreme Court rejected the

view that a plaintiff has standing only if it can

show a “protected legal interest", that inquiry,

the Court said, “goes to the merits”, and stand-

ing is a preliminary issue. Id. at 153, 90 S.Ct.

827, 830. The Court then specified that an

injured party has standing if it asserts an inter-

est “arguably within the zone of interests to be

protected _ by the statute in

question.” Id. (emphasis added). This test

seems to align the inquiry into standing with

the test for federal question jurisdiction, which

is that a complaint asserting a federal claim

can be dismissed for lack of jurisdiction only if

it is “wholly insubstantial and frivolous” or

“patently without merit.” Bell v. Hood, 327

U.S. 678, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946).

B-17

such powers in the GISD, it plainly wanted

GISD to affect decisions about whether and

when the program was adopted. This sug-

gests that Congress would not have object-

ed to GISD's foreing a judicial resolution of

a conflict between itself and the state over

this issue. By contrast, a suit by an inter-

ested outsider might upset a political ac-

commodation acceptable to GISD, the party

which, by hypothesis, is entitled to decide

what should be accepted.

[3] We are led to the same conclusion

that GISD should be allowed to bring this

suit —by another policy underlying the rule

against claiming third parties’ rights. One

reason to confer standing on a party is to

encourage the court to approach the case

from that party’s point of view; the rule

against asserting third parties’ rights is in-

tended partly to ensure that the court will

approach the case from the point of view of

those whom Congress wants to aid or pro-

tect or whose rights Congress wants to vin-

dicate. A case arising under a statute re-

stricting a bank's activities, for example,

may appear in one light when seen from the

point of view of the bank's competitors and

quite another from the perspective of the

bank's customers. The decision whether

the cuslomers or competitors have standing

to raise a claim is important partly because

B-18

it affects the way the court is likely to

focus on the issues."

[4] In this case the most appropriate

perspective for us to adopt in focusing on

the issues is that of the GISD. The issue in

this case is whether GISD or the state has

been empowered, by Congress, to make a

certain central decision about the breakfast

program. The school board and the state

represent different political interests with

different degrees of influence; a group can

be a statewide minority, for example, but a

majority in certain localities. The issue we

must decide, then, is which particular com-

bination of interests Congress intended to

protect and promote. We can best focus on

this issue by having before us the repre-

10. This example is suggested by Association of

Data Processing Serv. Orgs. v. Camp, 397 U.S.

150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). There

the Court granted banks’ competitors standing

to challenge an agency's decision that various

activities were permitted by the National Bank-

ing Act, 12 U.S.C. § 24(7). Commentators have

criticized the decision on the ground that it led

the Court to examine issues under the Act from

the competitors’ point of view when the Act is

more plausibly seen as an effort to protect

customers. As a result, commentators say, the

Court's interpretation of the Act was distorted.

See Stewart, supra, 88 Harv.L.Rev. at 1732-33.

Instead of simply granting standing to the com-

petitors, these commentators say, the Court

should have recognized an exception to the rule

against raising third parties’ claims and al-

lowed the competitors standing explicitly to

assert the customers’ rights. See id. at 1733.

B-19

sentatives of the two competing combina-

tions of interests. In other words, the

school board itself should assert the plain-

tiff’s case. The perspective we might adopt

if a taxpayer brought this suit, for example,

might be signifjcantly different, and would

be less likely to focus our attention on the

combination of interests Congress was at-

tempting to protect when, and if, it empow-

ered the school board to accept or reject the

breakfast program."' For these reasons,

the rule against asserting third parties’

claims does not bar GISD from bringing

this suit.

[5,6] There remains-only the third re-

quirement; this litigation must present a

genuine case or controversy under Article

III. One aspect of the requirement of a

genuine case or controversy is the principle

that a federal court may not resolve “hypo-

thetical or contingent questions.” Alabama

State Federation of Labor v. McAdory, 325

U.S. 450, 461, 65 S.Ct. 1384, 89 L.Ed. 1725

(1945). Nor may a federal court render

advisory opinions. E. g., Flast v. Cohen,

392 U.S. 83, 88 S.Ct. 1942, 1950-51, 20

11. We do not mean to decide whether the tax-

payers would have had standing to bring this

suit. We do mean to say, however, both that

GISD has standing and that in many ways it is

an especially appropriate plaintiff, so that our

decision to confer standing on it and to preter-

mit the claims of the taxpayers and the individ-

ual members of the GISD board of trustees

suing in their official capacities, see p. 1061

supra, was not arbitrary.

B-20

L.Ed.2d 947 (1968); United States v. Freu-

hauf, 365 U.S. 146, 81 S.Ct. 547, 554, 5

L.Ed.2d 476 (1961). As the Supreme Court

has recently emphasized in a context that is

only slightly different, an injured party

cannot sue unless “the exercise of the

Court’s remedial powers would redress the

claimed injuries.” See Duke Power Co. v.

Carolina Environmental Study Group, ——

U.S. ——,, 98 S.Ct. 220, 2631, 57 L.Ed.2d

595 (1978). There must be a “substantial

probability . . . that, if the court af-

fords the relief requested,” the plaintiffs’

legal injuries will be remedied. See Warth.

v. Seldin, 422 U.S. 490, 504, 95 S.Ct. 2197,

2208, 45 L.Ed.2d 343 (1975).

12. The Court has equated this principle to its

rule that a plaintiff has no standing unless its

injuries “fairly can be traced to the challenged

action of -the defendant,” Simon v. Eastern

Kentucky Welfare Rights Org., 426 U.S. 26, 41,

43, 96 S.Ct. 1917, 1925, 1926, 48 L.Ed.2d 450

(1976). See also Warth v. Seldin, 422 U.S. 490,

504, 506-07, 95 S.Ct. 2197, 45 L.Ed.2d 343

(1975). In the recent cases discussing this rule,

the issue had been whether the actions of some

“third part(y] not before the court,” see Village

of Arlington Heights v. Metropolitan Hous.

Dev. Corp., 429 U.S. 252, 264, 97 S.Ct. 555, 50

L.Ed.2d 450 (1976), would nullify the court's

decree and leave the plaintiff with no relief

from its injuries, see Duke Power Co. v. Caroli-

na Environmental Study Group, - US. -—,

98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); Simon v.

Eastern Kentucky Welfare Rights Org., 426

U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976);

Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45

B-21

In the case before us it might be thought

that our judgment is unlikely to relieve the

plaintiffs’ injury because Texas can defeat

any judgment simply by abolishing the

GISD. For this reason, it might be argued,

our decision would be purely advisory, or-at

least “hypothetical and contingent,” and the

requirements of Article III] would be unmet.

{7] It is, to be sure, undisputed that

Texas can abolish the GISD." The United

L.Ed.2d 343 (1975); here the danger is that the

defendant itself will nullify the judgment.

These decisions have been severely criticized.

See, e. g. Sager, Insular Majorities Unabated:

Warth v. Seldin and City of Eastlake v. Forest

City Enterprises, Inc., 91 Harv.L.Rev. 1373,

1382.-88 (1978). But there seems to be little

disagreement with their premise that in our

system federal courts will act only if a favor-

able decree would significantly increase the

plaintiffs chances of gaining some cognizable

legal benefit. Compare id. at 1385-88 with

Warth v. Seldin, 422 U.S. 490, 504, 95 S.Ct.

2197, 45 L.Ed.2d 343 (1975).

13. We assume that the GISD is not claiming

that the federal breakfast statutes require Tex-

as to maintain local school boards or compara-

ble entities; we take GISD to be arguing only

that as long as school boards exist, they, and

not state authorities, are entitled to decide

whether to accept the breakfast program.

Therefore we must determine whether Texas's

power to abolish the GISD makes any judg-

ment we might render an advisory opinion. In

any event, since we reject GISD’s more modest

claim on the merits, see Part Ill infra, we would

a fortiori reject the broader claim that Texas is

obligated to maintain school districts. So even

if GISD did make the broader claim we would

have to discuss the effect on our junsdiction of

Texas's power to abolish GISD.

B-22

States Constitution contains no general 4

limit on a state’s ability to abolish or reor-

ganize a municipality or another political

subdivision like a school district. See e. g.,

Hunter v. City of Pittsburgh, 207 U.S. 161,

28 S.Ct. 40, 46, 52 L.Ed. 151 (1907). But it

scarcely follows that because Texas can, in

this sense, circumvent our judgment, our

judgment would be only advisory or hypo-

thetical. Texas can abolish the GISD only

by enacting a statute; an administrative

regulation will not suffice. * See Tex.Educ.

Code Ann. tit. 2, § 11.14. Moreover, the

GISD performs a variety of functions con-

nected with education. See p. 1065 infra.

If Texas abolished the GISD it would pre-

sumably have to undertake many of those

functions itself, and to that extent adminis-

ter Garland schools directiy."® This is a

14. A state's decision to abolish or to reorganize

a municipality can, of course, violate a par-

ticular constitutional guarantee like the fif-

teenth amendment. See, e. g., Gomillion v.

Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 128 29, 5

L.Ed.2d 110 (1960) But the mere act of abol-

ishing or reorganizing a municipality does not

by itself invoke any constitutional provision.

15. As we have said,.we take GISD to be argu-

ing that the federal statute empowers school

districts to decide whether to accept the break

fast program, so long as school districts exist.

See footnote 13, supra. If this view is correct,

Texas would have to administer Garland

schools directly to the degree necessary to

make the GISD nonexistent for purposes of the

federal statute

B-23

heavy price to pay to avoid a judgment

dealing with only one aspect of education.

The political difficulty of passing a statute

abolishing GISD in the face of the well-

known tradition of local autonomy in educa-

tion, and the burdens Texas would have to

bear if it did take over a GISD’s functions

directly, convince us that there is at least a

“substantial probability,” see Warth v. Sel-

din, 422 U.S. 490, 95 S.Ct. 2197, 2208, 45

L..hd.2d 343 (1975), that GISD would re-

ceive the fruits of a favorable judgment.

[8] The relatively few Supreme Court

decisions addressing this issue reinforce our

conclusion. The Court has indicated its

willingness to decide a suit between states

for money damages, in its original jurisdic-

tion, even if it has no way to enforce its

award against a recalcitrant loser, see e. g.,

South Dakota v. North Carolina, 192 U.S.

286, 24 S.Ct. 269, 275-77, 48 L.Ed. 448

(1904); the Court said that it was prepared

to “rely on the good faith of state govern-

ments or other public bodies to respond to

its judgments.” Glidden Ca, v. Zdanok, 370

U.S. 530, 571, 82 S.Ct. 1459, 1483-84, 8

L.FEd.2d 671 (1962) (plurality opinion).

Here we have, as surety for Texas’s good

faith, the difficully—practical and _politi-

cal—of circumventing our decision. Simi-

larly, in Glidden Co. v. Zdanok, 370 U.S.

530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962), the

B-24

Supreme Court agreed to review decisions

of the Court of Claims even though large

money judgments could, at that time, be

enforced against the United States only if

Congress specifically appropriated the

funds. See id. at 1482-84." The Court

said that “Congress. . . has sought

to avoid interfering with” the collection of

Court of Claims judgments, and that histor-

ically parties awarded money judgments

against the United States have had far

more success in collecting than parties who

won in private litigation. Id. at 1483. Sim-

ilarly, the tradition of local autonomy in

education seems long and powerful in Tex-

as. See generally San Antonio Ind. School

Dist. v. Rodriguez, 411 U.S. 1, 6-7, 93 S.Ct.

1278, 36 L.Ed.2d 16 (1973). Moreover, the

Glidden court distinguished an earlier case,

Gordon v. United States, 69 U.S. (2 Wall.)

561, 117 U.S. 697 (1885), in which the Su-

preme Court had refused to take jurisdic-

tion over appeals of the Court of Claims

when that court’s judgments could be re-

vised by the Secretary of the Treasury.

This suggests that we should be influenced

by the fact that the GISD can be abolished

16. Now there is a general appropriation of

whatever sums are necessary to satisfy any

judgment of the Court of Claims. 31 U.S.C.

§ 724a.

B-25

only by statute, not by an administrative

rule or fiat. See p. 1064 supra. See also

Chicago & Southern Air Lines, Ine. v.

Waterman S.S. Corp., 333 U.S. 103, 68 S.Ct.

431, 437, 92 L.Ed. 568 (1948). Finally, in

United States v. Nixon, 418 U.S. 683, 94

S.Ct. 3090, 41 L.Ed.2d 1039 (1974), the Su-

preme Court acknowledged that the Presi-

dent could “theoretically” revoke the regu-

lation empowering the Watergate Special

Prosecutor; but at least until the President

did so, the Court held, litigation between

the Special Prosecutor and the President

was a justiciable controversy. Id. at 695

97, 94 S.Ct. 3090. The Court did mention

that “the delegation of authority to the

Special Prosecutor . . . [was] not an

ordinary delegation by the Attorney Gener-

al to a subordinate officer” because regula-

tions provided that the special prosecutor

was not to be removed without a “consen-

sus” of certain members of Congress. 418

U.S. at 696, 94 S.Ct. at 3102.7 But as we

17. The Court did not mention that this part of

the regulation may have been unenforceable, it

is not clear that members of Congress can

participate in decisions to dismiss officers with.

in the executive branch. See Freund, The Su-

preme Court, 1973 Term-——Foreword: On Presi-

dential Privilege, 88 Harv.L.Rev. 13, 16 n. 16

(citing Myers v. United States, 272 U.S. 52,

161 62, 47 S.Ct. 21, 71 L.Ed. 160 (1926)).

B-26

have noted, p. 1064 supra, Texas can dises-

tablish the GISD only by passing a statute,

not by administrative action. Moreover, in

United States v. Nixon the Court empha-

sized “the unique facts of this case”; this

may suggest that the key to the decision

was the political cost of dismissing the Spe-

cial Prosecutor. See The Supreme Court,

1973 Term, 88 Harv.L.Rev. 41, 52-53 (1974).

For all of these reasons, the danger that our

opinion will prove to be only advisory or

hypothetical does not deter us from allow-

ing GISD to bring this suit.

{9,10} Closely related to the proscrip-

tion of advisory opinions, however, is the

principle that a federal court may not de-

cide a case unless it “present{s] a real and

substantial controversy,” Poe v. Ullmann,

367 U.S. 497, 509, 81 S.Ct. 1752, 1759, 6

L.Ed.2d 989 (1961) (Brennan, J., concur-

ring); in particular we may not decide a

case in which one party “has no active

participation” and “over which [it] has exer-

cised no control.” United States v. John-

son, 319 U.S. 302, 304-05, 63 S.Ct. 1075,

1076, 87 L.Ed. 1413 (1943). Some state

agencies may well be so closely identified

with the state government, and so thor-

oughly controlled by the body they are su-

ing that the litigation amounts to a suit by

the state against itself; such a suit lacks

the live adversariness we must find before

B-27

we can entertain a case. See South Spring

Hill Gold Mining Co. v. Amador Medean

Gold Mining Co., 145 U.S. 300, 12 S.Ct. 921,

36 L.Ed. 712 (1892) (Court will not decide

case in which plaintiff in error and defend-

ant in error are controlled by same persons).

See also Fenner v. Continental Diving Ser-

vice, Inc., 543 F.2d 1113 (5th Cir. 1976).

The GISD is not this sort of agency, how-

ever. Both legally and practically, the

GISD seems sufficiently independent of the

state of Texas to ensure that a suit between

them will be a genuinely adversary contest.

Legally, independent school districts in

Texas have a variety of powers. They per-

form “all educational functions st specifi-

cally delegated” to the state education

agencies. Tex.Educ.Code Ann., tit. 2, § 11.-

01. They are specifically empowered to

make contracts, id., §§ 23.26, 23.28, to levy

and collect taxes, id. § 23.27, to obtain prop-

erty by eminent domain, id. § 23.31, and

generally “to manage and govern the public

free schools of the district,” id. § 23.26(b).

They can sue and be sued. Id., § 23.26(a).

The state can, to be sure, supervise the

local boards to some degree. The state

education authorities may review local

school boards’ decisions, Tex.Educ.Code

Ann., tit. 2, § 11.13, and the local boards are

bound by regulations issued by the state

B-2s

agency, Bear v. Donna Ind. School Dist., 85

S.W.2d 797, 798 (Tex.Civ.App.1935). But

local boards are then free to attack the

state agency's decisions in court. See e. g.,

Board of Trustees v. Briggs, 486 S.W.2d 829

(Tex.Civ.App.1972). Thus it seems clear

that local boards have some significant le-

gal rights that the state agency cannot take

away.

As a practical matter, too, local school

boards seem likely to enjoy a good deal of

freedom from state authorities. The mem-

bers of the local boards are elected by the

people of the district, not appointed from

above. Tex.Educ.Code Ann., tit. 2, § 23.-

1b). Moreover, the local boards have

their own funds. They can levy and collect

taxes, id. § 23.27, and funds disbursed by

the state to the districts become the proper-

ty of the local board of trustees, which

holds them in trust for the district; they

cannot be taken away by the state. Wright

v. Houston Ind. School Dist., 393 F.Supp.

1149, 1155 (S.D.Tex.1975), vacated and re-

manded on other grounds, 569 F.2d 1383

(5th Cir. 1978); Love v. City of Dallas, 120

Tex. 351, 40 S.W.2d 20, 26 (1931). Thus in

addition to its independent legal powers,

the GISD seems likely to have a mind of its

own; we think it improbable that its litiga-

tion will be conirolled by the state authori-

B-29

ties to any significant extent. We con-

clude, then, that GISD is sufficiently inde-

pendent of the state of Texas to bring this

suit.

This conclusion is supported, by analogy,

by two recent Supreme Court decisions. In

these decisions, the Court relied heavily on

the premise that the actions of a school

district are not to be treated as if they were

the direct actions of the state. In other

words, the school district and the state were

to be treated as separate entities.

In San Antonio Independent School Dis-

trict v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278,

36 L.Ed.2d 16 (1978), the Supreme Court

upheld Texas's system of financing public

education. Under that system a substantial

portion of each school district’s expendi-

tures is financed by an ad valorem property

tax levied by the district. Because the

property in some districts has a higher as-

sessed value, there are wide disparities in

per-pupil expenditures among the school

districts. The Court rejected a number of

constitutional challenges to these inequali-

ties, among them the argument that “the

Texas system is unconstitutional

because it allows —. the quality of

education to fluctuate on the basis of the

fortuitous positioning of boundary lines of

political subdivisions.” 411 U.S. at 53, 98

S.Ct. at 1307. The Court said:

B-30

[A]ny scheme of local taxation—indeed

the very existence of identifiable local

governmental units—requires the estab-

lishment of jurisdictional boundaries that

are inevitably arbitrary. It is equally

inevitable that some localities are going

to be blessed with more taxable assets

than others.

Id. at 53-54, 93 S.Ct. at 1307; see McGowan

v. Maryland, 366 U.S. 420, 427, 81 S.Ct.

1101, 6 L.Ed.2d 393 (1961); cf. Baker v.

Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d

663, 707-09 (1962), (Clark, J., concurring)

(inequalities in legislative apportionment

unconstitutional because unrelated to any

coherent theory of representing local units

of government); Mahan v. Howell, 410 U.S.

315, 325 -26, 93 S.Ct. 979, 985, 35 L.Ed.2d

320 (1973) (“maintaining the integrity of

political subdivision lines” justifies signifi-

cant deviation from equality in apportion-

ment of state legislature). It seems likely,

however, that the Court accepted these dis-

parities only because they resulted from an

established system in which each school dis-

trict regulated some of its own affairs. In

other words, if there were no school dis-

tricts and the state itself assessed and col-

lected all taxes and then directly financed

all public education in such a highly dispa-

rate fashion--in which expenditures varied

B-31

not just according to various residents’ will-

ingness to tax themselves but according to

the value of neighboring property—we

strongly suspect that the Court would not

have accepted the disparities. If we are

correct, then the Rodriguez Court was re-

fusing to treat the actions of school cistricts

as if they were the direct acts of the state

itself.

Milliken v. Bradley, 418 U.S. 717, 94 S.Ct.

3112, 41 L.Ed.2d 1069 (1974), also suggests

that school districts’ actions are not to be

treated as if they were the direct acts of

the state. Milliken held that a_ federal

court's remedy for unconstitutional school

segregation had to take account of school

district lines drawn by the state.

Before the boundaries of separate and

autonomous school districts may be set

aside by consolidating the separate units

for remedial purposes or by imposing a

cross-listrict remedy, it must first be

shown that there has been a constitution-

al violation within one district that pro-

duces a significant segregative effect in

another district.

The [district] court’s analytical starting

point was its conclusion that school dis-

trict lines are no more than arbitrary

lines on a map drawn “for political conve-

nience.” . . . [This] notion that

B-32

school district lines may be casually ig-

nored or treated as a mere administrative

convenience is contrary to the history of

public education in our country.

Id. at 744-45, 741, 94 S.Ct. at 3125, 3127.

Milliken did not, however, suggest that a

state might insulate itself from a decree

remedying its own constitutional violations

merely by drawing “arbitrary lines on a

map,” see 418 U.S. at 741, 94 S.Ct. at 3125.

Rather, the Milliken Court emphasized that

school districts are traditional units of local

government, sce 418 U.S. at 741-42, 94

S.Ct. at 3125-3126, with a variety of

functions, see id. at 742, 94 S.Ct. at 3126, n.

20, and subject to local control, see id. at

742, 94 S.Ct. at 3126, and suggested that

for these reasons a school district’s viola-

tions were to be attributed only to it

and not to the state. See id. at 770,

777--79, 94 S.Ct. at 3139, 3143-44 (White, J.,

dissenting). Milliken and Rodriguez, then,

agree on a central principle: the actions of

certain sorts of political subdivisions are not

always to be treated as if they were the

direct acts of the state itself. It follows

that the decision to sue Texas which was

made by the GISD—a subdivision rauch like

B-33

those involved in Milliken and Rodriguez ¥—

was not a decision by the state to sue itself

but the decision of a government that is

treated, for at least some constitutional

purposes, as an independent actor. Strictly

as a matter of logic, it does not follow that

the state and the school district are distinct

entities for Article III purposes. But the

analogy to Rodriguez and Milliken does

support our conclusion that we are pre-

sented with a sufficiently live controversy

under Article III.

Under the criteria normally governing

standing to sue in federal court, then, GISD

would be able to bring this suit against

Texas.

{11} Texas, however, cites a series of

Supreme Court decisions which seem to

hold that a municipality '* cannot sue the

state that created it. In some of these

18. Rodriguez was a suit against another inde-

pendent school district in Texas, and Michigan

school districts like the one involved in Milliken

show many of the characteristics of Texas in-

dependent school districts. Compare 418 U.S.

at 742, 94 S.Ct. at 3126 n. 20 with pp. 1065 -66

supra.

19. For purposes of this analysis, the Garland

~Independent School District may be treated as

a municipality, cf. Harkless v. Sweeny Ind.

B-34

cases the state altered the municipality's

boundaries or consolidated different munici-

palities; Hunter v. Pittsburgh, 207 U.S. 161,

28 S.Ct. 40, 52 L.Ed. 151 (1907), is usually

considered the leading example.” In other

cases, of which Trenton v. New Jersey, 262

U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937 (1923) is

typical, the state attempted to modify a

grant or charter it had previously given to

the municipality. Invariably federal

School Dist., 427 F.2d 319, 321 (Sth Cir. 1970),

cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27

L.Ed.2d 439 (1971) (school district is to be

treated as municipality for purposes of suscep-

tibility to suit under 42 U.S.C. § 1983), because

the reasoning of the cases cited by Texas ap-

plies to all political subdivisions created by a

state.

20. See e. g., Williams v. Eggleston, 170 U.S.

304, 18 S.Ct. 617, 42 L.Ed. 1047 (1898); Town

of Mt. Pleasant v. Beckwith, 100 U.S. 514, 525,

25 L.Ed. 699, 701 (1880); Comm'rs of Laramie

County v. Comm'rs of Albany County, 92 U.S.

307, 23 L.Ed. 552 (1876); City of Safety Harbor

v. Birchfield, 529 F.2d 1251, 1254-55 (5th Cir.

1976).

21. See, e. g., Pawhuska v. Pawhuska Oil Co.,

250 U.S. 394, 39 S.Ct. 526, 63 L.Ed. 1054

(1919); New Orleans 9. New Orleans Water-

works Co., 142 U.S. 79, 12 S.Ct. 142, 35 L.Ed.

943 (1891); East Hartford v. Hartford Bridge

Co., 13 L.Ed. 518, 10 How. 511 (1850). See also

Williams v. Mayor of Baltimore, 289 U.S. 36, 53

S.Ct. 431, 77 L.Ed. 1015 (1933); Worchester v.

Street Ry. Co., 25 S.Ct. 327, 49 L.Ed. 591

(1905).

B-35

courts have ruled against the municipality's

claim that the state actions violated the

municipality’s rights under the contract

clause, see, e. g., Railroad Comm'n v. Los

Angeles R.R., 280 U.S. 145, 156, 50 S.Ct. 71,

74 L.Ed. 234 (1929); Hunter v. Pittsburgh,

207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151

(1907); City of Safety Harbor v. Birchfield,

529 F.2d 1251, 1254-55 (5th Cir. 1976) or the

just compensation clause, see, e. g., City of

Trenton v. New Jersey, 262 U.S. 182, 43

S.Ct. 534, 67 L.Ed. 937 (1923), or the due

process, see, e. g., id.; Northwestern School

Dist. v. Pittenger, 397 F.Supp. 975, 979

(W.D.Pa.1975), or equal protection clauses,

see, e. g. Williams v. Mayor of Baltimore,

289 U.S. 36, 53 S.Ct. 431, 77 L.Ed. 1015

(1933); City of Newark v. New Jersey, 262

U.S. 192, 43 S.Ct. 539, 67 L.Ed. 943 (1923);

Williams v. Eggleston, 170 U.S. 304, 18 S.Ct.

617, 42 L.Ed. 1047 (1898). See also Risty v.

Chicago, R. I. & Pac. R.R., 270 U.S. 378, 46

S.Ct. 236, 241, 70 L.Ed. 641 (1926); (four-

teenth amendment); City of New York v.

Richardson, 473 F 2d 923, 929 (2d Cir.), cert.

denied, 412 U.S. 950, 93 S.Ct. 3012, 37

L.Ed.2d 1002 (1978) (various constitutional

claims). While these cases do not always

speak of standing, the Supreme Court has

said that “{bJeing but creatures of the

State, municipal corporations have no

standing to invoke the contract clause or

B-36

the provisions of the Fourteenth Amend-

ment of the Constitution in opposition to

the will of their creator.” Coleman v. Mil-

ler, 307 U.S. 433, 441, 59 S.Ct. 972, 976, 83

L.Ed. 1385 (1939). And these decisions are

frequently said to establish that a munici-

pality has no standing to sue the state that

created it. See, e. g., Aguayo v. Richard-

son, 473 F.2d 1090, 1100 (2d Cir. 1973), cert.

denied, 414 U.S. 1146, 94 S.Ct. 900, 39

L.Ed.2d 101 (1974); P. Bator et al., Hart

and Wechsler’s The Federal Courts and the

Federal System (2d ed.) 182 (1973). Some

of the language in the opinions is indeed

broad enough to support this interpretation. .

See, e. g., Williams v. Mayor of Baltimore,

289 U.S. 36, 40, 53 S.Ct. 431, 432, 77 L.Ed.

1015 (1933) (“A municipal corporation, cre-

ated by a state for the better ordering of

government, has no privileges or immuni-

ties under the Federal Constitution which it

may invoke in opposition to the will of its

creator.”); City of Trenton v. New Jersey,

262 U.S. 182, 187, 43 S.Ct. 534, 537, 67 L.Ed.

937 (1923) (“{[A] municipality is merely a

department of the state, and the state may

withhold, grant or withdraw powers or

privileges as it sees fit. However great or

small its sphere of action, it remains. the

creature of the state exercising and holding

powers and privileges subject to the sover-

eign will,”). See also Hunter v. Pittsburgh,

207 U.S. 161, 178-79, 28 S.Ct. 40, 52 L.Ed.

151 (1907).

aia.

B-37

We believe, however, that these decisions,

properly interpreted, do not require us to

deny GISD standing in this case. The Su-

preme Court itself said, in a somewhat uif-

ferent context from that facing us here,

that “a correct reading of the seemingly

unconfined dicta of Hunter and kindred

cases is not that the State has plenary

power to manipulate in every conceivable

way, for every conceivable purpose, the af-

fairs of its municipal corporations, but rath-

er that the State’s authority is unrestrained

by the particular prohibitions of the Consti-

tution considered in those cases.” Gomil-

lion v. Lightfoot, 364 U.S. 339, 344, 81 S.Ct.

125, 128, 5 L.Ed.2d 110 (1960). We agree.

We think these cases are substantive inter-

pretations of the constitutional provisions

involved; we do not think they hold that a

municipality never has standing to sue the

state of which it is a creature. In fact,

correctly interpreted, these cases do not

deal with “standing,” in the sense in which

we use the term, at all. We reach these

conclusions for several reasons.

The Hunter and Trenton line of cases are

descendents of Trustees of Dartmouth Col-

lege v. Woodward, 17 U.S. (4 Wheat.) 518, 4

L.Ed. 629 (1819). That great case prohibit-

ed New Hampshire from modifying a char-

ter that the colonial government had issued

te Dartmouth College. Applying the con-

tract clause to the charters and grants of a

B-38

government, however, created a _ serious

problem; many state actions might be said

to be contracts with those who benefitted

from them, and a state barred from impair-

ing any such contract would be practically

unable to legislate in large, important ar-

eas.

[T]he word “contract,” in its broadest

sense, would comprehend the political re-

‘Jations between the government and its

citizens, would extend . . . to many

of those laws concerning civil institutions,

which must change with circumstances,

and be modified by ordinary legislation.

Id. 17 U.S. (4 Wheat.) at 627, 4 L.Ed. at

657. Such an interpretation of the contract

clause, said Chief Justice Marshall, writing

for the Court, “would be an unprofitable

and vexatious interference with the internal

‘concerns of a state,” and would be “un-

necessary, . . . mischievous, and

repugnant to [the] general spirit”

of the Constitution. Id.

To solve this problem the Dartmouth Col-

lege Court distinguished between two types

of state actions. The contract clause ap-

plied to grants of “private” powers, or

grants to private institutions. Allocations

and regulations of “political” powers, how-

ever, were exempt from the contract clause.

17 U.S. (4 Wheat.) at 630, 629, 4 L.Ed. at

657. And while Dartmouth College itself

Mii os

B-39

dealt with the contract clause alone, Chief

Justice Marshall’s reasoning was broader;

he erected the general principle that the

entire Constitution does not interfere in a

state’s internal organization of its political

functions.

[T]he framers of the constitution did not

intend to restrain the states in the regu-

lation of their civil institutions, adopted

for internal government, and

the instrument they have given us is not

to be so construed.

Ifthe act . . . bea grant of politi-

cal power, if it create a civil institution to

be employed in the administration of

government... the subject is one

in which the legislature of the state may

act according to its own judgment, unre-

strained by any limitation of its power

imposed by the constitution of the United

States.

17 U.S. (4 Wheat.) at 629-630, 4 L.Ed. at

657.

As we read them, the Hunter and Tren-

ton line of cases are simply faithful to this

principle of Dartmouth College. They hold

that the Constitution does not interfere in

the internal political organization of states.

Decisions in the Hunter and Trenton line

B-40

dealing with claims under the equal protec-

tion or due process clauses, see pp. 1067-68

supra, extend this principle to the four-

teenth amendment. In some respects the

Court has retreated from this absolute posi-

tion, see, e. g. Gomillion v. Lightfoot, 364

U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960);

id. at 128-29 (citing cases), but these re-

treats are not our present concern. Our

point is that Hunter, Trenton, and allied

cases are substantive holdings that the Con-

stitution does not interfere in states’ inter-

nal political organization. They are not

decisions about a municipality’s standing to

sue its state.

Hunter itself confirms our view; it con-

tinues the Dartmouth College distinction

between allocations of political or public

powers, on the one hand, and allocations of

private powers, on the other. After a clas-

sic description of the unlimited power of

states over municipalities, the Hunter Court

said:

It will be observed that, in describing the

absolute power of the state over the prop-

erty of municipal corporations, we have

not extended it beyond the property held

and used for governmental purposes.

Such corporations are sometimes autho-

rized to hold and do hold property for the

same purposes that property is held by

B-4]

private corporations or individuals, .

it has been held that, as to the latter class

of property, the legislature is not omnipo-

tent.

28 S.Ct. at 47. See also City of Trenton v.

New Jersey, 262 U.S. 182, 43 S.Ct. 534,

537.38, 67 L.Ed. 937 (1923). The Court

went on to acknowledge, implicitly, that a

municipality could raise the claim that its

“private” contract and property rights had

been impaired. Id. This acknowledge-

ment is, of course, flatly inconsistent with

the position that a municipality can never

sue the state that created it.

The opinions in the Hunter and Trenton

line do occasionally—but by no means uni-

formly—speak of “standing,” and deny that

a municipality has “standing” to sue the

state. But when those cases were decided,

“standing” generally meant something

somewhat different from what it means

today. A party had standing—or a “right

to sue”—if it was correct in its claim on the

merits that the statutory or constitutional

provision in question protected its interests;

standing was not seen as a preliminary or

threshold question. See, e. g. Tennessee

22. More recently the Supreme Court has inti-

mated that this distinction between the public

and private rights of a municipality is not ex-

tinct. See Gomillion v. Lightfoot, 364 U.S. 339,

81 S.Ct. 125, 128, 5 L.Ed.2d 110 (1960).

B-42

Electric Power Co. v. TVA, 306 U.S. 118,

139-40, 59 S.Ct. 366, 83 L.Ed. 543 (1939);

Ashwander v. TVA, 297 U.S. 288, 343, 56

S.Ct. 466, 481, 80 L.Ed. 688 (1936) (Brandeis,

J., dissenting); Albert, Standing to Chal-

lenge Administrative Action: An Inade-

quate Surrogate for Claims for Relief, 83

Yale L.J. 425, 427-42 (1974). In speaking

of “standing,” cases in the Hunter and

Trenton line meant only that, on the merits,

the municipality had no rights under the

particular constitutional provisions it in-

voked. This is why the Hunter and Tren-

ton series of cases did not mention the

criteria we now associate with inquiries into

standing—the extent of an actual injury

and of a genuine case or controversy, for

example. When we applied these criteria,

see pp. 1060-67, supra, we found no bar

to conferring standing on GISD in this case.

The Hunter and Trenton cases, then, do

not deal with standing; they adhere to the

substantive principle that the Constitution

does not interfere with a state’s internal

political organization. This principle is not

relevant to the case before us. GISD’s

claim is that Congress, exercising its power

under Article I, has interfered with Texas’s

internal political organization, at least to

the extent of allowing a school district to

ignore the state’s mandate and to decide for

itself whether to accept the breakfast pro-

gram. There is every reason to think that

B-43

Congress may interfere with a state’s inter-

nal political organization in ways tHat the

Constitution itself does not interfere; the

Supreme Court has never said otherwise.

See City of New York v. Richardson, 473

F.2d 923, 929 (2d Cir.) cert. denied, 412 U.S.

950, 93 S.Ct. 3012, 37 L.Ed.2d 1002 (1973);

NAACP v. Wilmington Medical Center,

Inc., 426 F.Supp. 919, 926 n.1 (D.Del.1977);

Triplett v. Tiemann, 302 F.Supp. 1244

(D.Nev.1969). The Court has, to be sure

limited Congress’s power in a way faintly

analogous to the Dartmouth College distinc-

tion between private and governmental

powers; it has held that Congress may not

“impermissibly interfere with the integral

governmental functions” of states and their

subdivisions. National League of Cities v.

Usery, 426 U.S. 833, 851, 96 S.Ct. 2465, 2474,

49 L.Ed.2d 245 (1976). It is unclear wheth-

er this limitation ever applies to an act of

Congress which, like the breakfast program,

does not necessarily require anything of the

states or their subdivisions but only offers

funds to states or subdivisions which com-

ply with certain conditions.* Our decision

on the merits, see Part III infra, makes it

23. Im Massachusetts v. Mellon, 262 U.S. 447,

482, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), the

Supreme Court held that a state may not chal-

lenge such an optional federal spending pro-

gram, partly because “the statute [does noi]

B-44

unnecessary to discuss whether this limit on

Congress’s power wouid keep it from doing

what GISD claims it has done, cf. Public

Utility Dist. No. 1 v. FPC, 113 U.S.App.D.C.

363, 366-68, 308 F.2d 318, 321-23 (1962),

cert. denied, 372 U.S. 908, 83 S.Ct. 719, 9

L.Ed.2d 716 (1963) (FPC may empower mu-

nicipality to condemn land despite state

statute prohibiting municipality from doing

so); Alabama NAACP State Conference of

Branches v. Wallace, 269 F.Supp. 346 (M.D.

Ala.1967) (declaring unconstitutional a state

statute prohibiting localities from obtaining

federal money by complying with federal

desegregation guidelines), for we hold that

GISD is incorrect in asserting that Congress

has empowered school districts to decide for

themselves whether to accept the breakfast

program. But in any event these are sub-

stantive limits on Congress’s power. They

are not material to our inquiry into GISD’s

standing. We conclude that the Hunter

and Trenton line of cases do not, properly

speaking, deal with a municipality’s stand-

ing to sue the state that created it. There-

fore they do not deny GISD standing to

bring this suit.

require the states to do or to yield anything. If

Congress enacted it vith the ulterior purpose

of tempting them to yrld, that purpose may be

effectively frustrated by the simple expedient

of not yielding.” 43 S.Ct. at 599.

B-45

Ill.

[12] GISD contends that § 21.914 is in-

consistent with the federal school breakfast

statutes and regulations and therefore un-

constitutional under the supremacy clause.

For the most part, GISD relies on a section

of the principal statute establishing the

breakfast program and on one of the regu-

lations. ‘ne statute, 42 U.S.C. § 1773(a),

provides in part:

There is hereby authorized to be appro-

priated such sums as are necessary to

Boys assist the States through

grants-in-aid and other means to initiate,

maintain, or expand nonprofit breakfast

programs in all schools which make appli-

cation for assistance and agree to carry

out a nonprofit breakfast program in ac-

cordance with this chapter.

(emphasis added). The regulation, 7 C.F.R.

§ 220.7(a), says that “The School Food Au-

thority shall make written application to

the state agency . . . for any. school

in which it desires to operate the School

Breakfast Program Raps ee

“School Food Authority” is defined as “the

governing body which is responsible for the

administration of one or more schools and

which has legal authority to operate a

breakfast program therein.” 7 C.F.R.

§ 220. w). GISD argues in effect that the

B-46

phrase “in all schools which make applica-

tion for assistance” in § 1773(a) implies that

no school which has not applied shall have

the program forced on it. And GISD of

course argues that the School Food Author-

ity is the school board, and that § 220.7(a)

expressly gives it the power to decide

whether to accept the breakfast program.

These texts alone do not settle the issue.

Section 1773(a) says “schools,” not “school

boards,” and GISD does not seem to con-

tend that each individual school can decide

to reject the program.” In any event, this

interpretation of the statute would make

the very regulation GISD relies on illegal.

Moreover, the same sentence speaks of “as-

sist{ing] the States,” suggesting that the

states have primary responsibility over the

breakfast program.

In fact, the legislative history indicates

that this portion of § 1773(a) has nothing to

do with specifying the local body which is to

decide whether to participate. The earlier

version of the first sentence of § 1773(a)

had read:

“There is hereby authorized to be ap-

propriated for each of the fiscal years

1972 and 1973 not to exceed $25,000,000

24. One federal court has rejected this inter-

pretation of the statute. See Torres v. Butz,

397 F.Supp. 1015 (N.D.11.1975).

B-47

to carry out a program to assist the

States through grants-in-aid and other

means to initiate, maintain, or expand

nonprofit breakfast programs in schools.”

See 42 U.S.C.S. § 1773. This was a limited’

authorization; it provided funds for the

program in only some of the schools that

wanted to participate. In 1972 Congress -

decided to authorize enough funds to pro-

vide breakfasts in every school that wanted

to participate. See S.Rep. No. 92-1027, 92d

Cong., 2d Sess., reprinted in [1972] U.S.Code

Cong. & Admin.News, pp. 3380, 3392. Not

unnaturally, it said so by rewriting the stat-

ute to authorize “such sums as are neces-

sary [to fund the program] in all schools

which make application . . ..” There

is no indication that Congress intended to

change § 1773(a) from an authorization of

funds into a provision dealing with the rela-

live powers of states and local school

boards.

The regulation cited by GISD, 7 C.F-.R.

§ 220.7(a), similarly is not dispositive. It

may just be a traffic control device specify-

ing the agency that is to handle paperwork

connected with the application. See id.; id.

§ 220.7(b) (administrative responsibilities

associated with application). Moreover, a.

“School Food Authority” is defined as the

body “which has legal authority to operate

a breakfast program.” 7 C.F.R. § 220.2(w).

B-48

Presumably it is state law which defines the

legal authority of various local bodies; by

enacting § 21.914 Texas has removed from

GISD the legal authority to decide whether

to participate in the program. Of course,

§ 1773(ay and 7 C.F.R. § 220.7(a) lend no

support to Texas’s argument that the feder-

al program permits statutes like § 21.914,

but they do not decide the case in GISD’s

favor either. They leave the question open.

We must, therefore, examine the statuto-

ry and regulatory scheme, and the legisla-

tive history, in an effort to answer two

questions. First, in establishing the federal

breakfast program, did Congress indicate

any general distrust of state governments?

That is, did Congress seem to believe that

decisions made by local school boards would,

in general, better effectuate the policies of

the program? And second, even if Con-

gress expressed no general reluctance to

allow state governments to make decisions

about the breakfast program, does this par-

ticular Texas statute, mandating breakfast

programs in schools with a substantial num-

ber of children from poorer families, clash

with any specific congressional policy?

There are few signs that Congress and

the Department of Agriculture generally

distrusted state governments; indeed the

evidence is rather that Congress wanted to

B-49

involve the stetes fully in the administra-

tion of the program. The state educational

agencies receive the local authorities’ appli-

cations, 42 U.S.C. § 1773(a), and enter into

contracts with local schools or school dis-

tricts to run the program, 7 C.F.R. § 220.-

7(a). Subject to the federal guidelines, the

state authorities can set the rates at which

school districts will be reimbursed. 7 C.F.R.

§ 220.9. They decide which school districts

will receive additional payments if the uni-

form national rates of reimbursement do

not cover all their costs. 42 U.S.C.

§ 1773(d); 7 C.F.R. § 220.%c). Under an

earlier version of the breakfast program,

when only limited funds were authorized,

states could select—according to certain

federal criteria—the schools that would be

permitted to participate in the programs;

now states can, at least, still choose which

schools to reimburse if appropriated funds

are insufficient to reimburse all the schools

that want to participate. See 42 U.S.C.

§ 1773(c). All of these tasks require the

state to make important and potentially

controversial decisions. Congress would not

have assigned them to the states if it dis-

trusted the states, wanted to insulate local

school boards from the states’ mandates, or

thought that local boards’ decisions were

hse rt ,

B-50

singularly likely to further the policies of

the program.*

Finally, § 21.914 itself seems quite con-

sistent with the policies of the federal

breakfast program. In many ways, Con-

gress made clear its desire to expand the

program generally. Perhaps even clearer is

Congress’s particular concern that as many

poor children as possible be served free or

reduced-price breakfasts.”

The policy in favor of expanding the pro-

gram is made explicit in 42 U.S.C.

§ 1773(g), which provides:

As a national nutrition and health policy,

it is the purpose and intent of Congress

that the school breakfast program be

made available in all schools where it is

25. The legislative history contains several sug-

gestions that states, as well as localities, should

be closely involved in the program. See, e. g.,

House Rep. No. 1802, 89th Cong., 2d Sess.,

reprinted in [1966] U.S.Code Cong. & Admin.

News, pp. 3180, 3180, 3182, 3187. There are

even indications that Congress envisioned that

the states would decide whether to participate.

See, e. g., id. at 3182; House Rep. No. 91--81,

91st Cong., 2d Sess., reprinted in [1970] U.S.

Code Cong. & Admin.News, pp. 3014, 3019

(Additional Views of William A. Steiger of Wis-

consin).

26. It follows, of course, that our decision does

not suggest that a state could constitutionally

require a school or school board to reject the

breakfast program.

B-5|

needed to provide adequate nutrition

In addition, participating states are re-

quired to submit to the Secretary of Agri-

culture, annually, a plan demonstrating

their intention “to use the funds provided

under [the school breakfast program] .

to the maximum extent practicable to reach

needy children.” 42 U.S.C. § 1759a(e)(1)(C).

The regulations specify that “state agencies

have a positive obligation . . . to ex-

tend the benefits of the School Breakfast

Program to children attending schools

where poor economic conditions exist.” 7

C.F.R. § 220.7(c). Arguably, these provi-

sions themselves authorize state statutes

like Texas’s § 21.914, requiring school dis-

tricts with a high percentage of poorer chil-

dren to participate; in any event, they re-

veal Congress's hospitality to such state

statutes. In the past, when Congress did

not authorize enough funds to reimburse

every school that wanted to participate in

the program, it made its concern with

reaching poor children even more explicit;

in selecting the schools that would partici-

pate, states were to give priority to schools

with children from poorer areas, see 42

U.S.C. § 1773(c), and to schools in which

“there is a special need for improving the

nutrition and dietary practices of children

of working mothers and children from low-

income families.” Jd. Now that Congress

B-52

has authorized funds sufficient to cover all

schools that want to participate, see p. 1072

supra, these priorities are less important,

although they still govern states’ decisions

about which schools to reimburse when ap-

propriations fall short. But there is no

reason to think that Congress has retreated

from the concern for reaching the poor

demonstrated by those priority provisions.

Congress was not coy about its ambitions

for the federal breakfast program. It

wanted “to meet more effectiveiy the nutri-

tional needs of our children,” and “to safe-

guard the health and well-being of the Na-

tion’s children,” 42 U.S.C. § 1771, particu-

larly those children who, because of their

family’s poverty or for some other reason,

are inadequately fed. To this end Congress

wanted the program to expand and to reach

every school where it is needed. In § 21.914

Texas has tried to bring Congress’s plan to

fruition; it has been faithful to Congress’s

intentions. We do not agree with GISD

that such fidelity is outlawed by the pro-

gram itself. In this context we cannot ac-

cept GISD’s pretension to be a rulemaker

instead of just a housekeeper, for GISD’s

claim would take the starch out of the

breakfast program.

For all of these reasons, we think that

Congress—in addition to trusting the states

generally, and not wanting to limit their

B-53

control over the breakfast program—partic-

ularly favored state efforts to expand the

program to reach poorer children. The fed-

eral breakfast program, and the policies

underlying it, are entirely compatible with

Texas’s § 21.914. The district court was

correct to hold that § 21.914 is constitution-

al. ts judgment is

AFFIRMED.

(c by NUMBER SYSTEM >

B-54 B-55

A ON CONSIDERATION WHEREOF, It is now here ordered and

United States Court of Appeals adjudged by this Court that the judgment of the said District

Court in this cause be, and the same is hereby, affirmed;

FOR THE FirtH CIRCUIT

It is further ordered that the plaintiffs-appellants pay to the

defendants-appellees the costs on appeal, to be taxed by the

Clerk of this Court.

No. 78-2505

February 2, 1979

D.C. Docket No. CA 3-78-0238-F Issued As Mandate:

Dr. RONNIE ROGERS, ET AL.,

Plaintiffs-Appellants,

Versus

Dr. M. L. BROCKETTE, ET AL.,

Defendants-A ppellees.

Appeal from the United States District Court for the

NORTHERN District OF TEXAS

BEFORE SKELTON,* SENIOR JUDGE AND GOLDBERG AND Fay,

Circuit JUDGES.

JUDGMENT

This cause came on to be heard on the transcript of the record

from the United States District Court for the Northern District

of Texas, and was argued by counsel;

*Senior Judge, United States Court of Claims, sitting by

designation.

C-]

APPENDIX C

IN THe United States District Court

FoR THE NORTHERN District Or Texas

DALLAS DIVISION

Dr. RONNIE ROGERS, ET Al )

Vs. () No. CA3-78-0238-F

Dr. M. L. BROCKETTE, 4

Commissioner of Educationof 4

the State of Texas, etal 4

ORDER

Plaintiffs have filed a motion for summary judgment against

the Defendants in the above referenced case and the Defendants

have responded with a cross motion for summary judgment

against the Plaintiffs. The issues have been briefed and an oral

argument was held in chambers. The Court is of the opinion that

the Defendants’ motion for summary judgment should be, and

hereby is GRANTED. The Plaintiffs’ and Intervenor’s motions

for summary judgment are DENIED.

This suit involves an attempt by the Garland Independent

School District as well as the intervening Greenville Independent

School District to invalidate Section 21.914 of the Texas

Education Code because of an alleged conflict with 42 U.S.C.

§1773 and regulations thereunder. I have granted the Defendants’

summary judgment motion on the ground that the Plaintiffs lack

standing to initiate or maintain this action.

Even if the Plaintiffs had standing to bring and maintain this

action I do not believe that the state statute conflicts with the

federal statute. The intent of the Federal School Breakfast

C-2

Program is to provide every eligible school child with free

breakfast. Torres v. Butts, 397 F.Supp. 1015 (N.D. Ill. 1975).

The state statute furthers this congressional intent by requiring

school districts with a certain percentage of eligible children in

one or more schools to participate in the federal program. The

Plaintiffs argue that even if the objectives of the state and federal

statutes are the same, the state statute may impair the federal

supervision of this field and, therefore, should be struck down.

However, the Court does not see how, in any way, the federal

supervision of this program is impaired by the Texas statute.

The school district may not even suffer any financial damage

as a result of participation in this program. The federal statute

provides that a school may be entitled to receive 100% of the

operating costs of the breakfast program, including the cost of

obtaining, preparing and serving food. 42 U.S.C. §1773(d). Thus,

even though Plaintiffs allege that there may be significant

expenditures required of the Garland and Greenville Independent

School Districts, it appears that, pursuant to the federal law, the

school districts may be completely reimbursed.

It is so ORDERED.

/s/ Ropert W. PorTER

UNITED STATES DISTRICT JUDGE

June 26, 1978

DATE

June 26, 1978

C-3

IN THe Unirep States District Court

For THt NORTHERN District OF TEXAS

DALLAS DIVISION

Dr. RONNIE ROGERS, ET AL i)

Vy. ) No. CA3-78-0238-F

Dr. M. L. BROCKETTE, i)

Commissioner of Educationof 4

the State of Texas, etal

FINAL JUDGMENT

The Court is of the opinion that the Defendants’ motion for

summary judgment should be and hereby is granted. The

Plaintiffs’ motion for summary judgment is denied. The motion

for summary judgment of the intervenor Greenville Independent

School District is denied. All parties shall bear their own costs.

/s/ ROBERT W. PoRTER

UNITED STATES DISTRICT JUDGE

ocean

DATE

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