# Petition — Rogers v. Brockette

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 827

## Text

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

‘

i
INDEX
wen
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 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)

no

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.

A.

{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.

B.

{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.

Ww
(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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0133%3A1. Public record. Not legal advice.