Amicus Curiae Brief — Hadley v. Junior College District of Metropolitan Kansas City

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metitutional provisions and statutes involved__.._____-

Perenentegs. .. ti. oe eae ce ela

terest of the United States.__.......__..____________

mumeént :

. Introduction and summary-_--_._--..-....._______

» J. Nothing in this Court’s decision in the Sailors

bp a case prevents application of the equal-

population principle to elected school boards_

‘II. Lower court decisions, both before and after

- Sailors was decided, support application of

Ef the equal-population principle to elected

a PnnOAl PONE... nnn viisneewnmitanecs

} _ IIL. Both the holding and opinion of this Court in

4 the Avery case, as well as its underlying

rationale, support application of the equal-

q population principle to elected school boards_

* thought to exercise administrative as dis-

tinguished from legislative powers, nor the

fact that school districts are special-purpose,

single-function units of local government,

makes the rationale of Reynolds and Avery

OT _ RRESIRELEN EP REE, Ea

V. Sound policy considerations also favor appli-

cation of the equal-population principle to

elected school boards_---_---........__.__

851-217—69—— 1

CITATIONS

Cases: bewete id

Allen v. State Board of Elections, Nos. 3, et al., this

Term, decided March 3, 1969__......-..._...___. 4

Armentrout v. Schooler, 409 S.W. 2d 138_......_.____ ="

Avery v. Midland County, 390 U.S. 474....______ in passim

meee. Carr, S00 UM, 188... oc oa, ee “3

Bradley v. School Board, 382 U.S. 103. .-------.... “%

Brown v. Board of Education, 347 U.S. 483__.._____. 22, 36

Bunton v. Patterson, No. 26, Tem,

Mateh $, 1000... .. - iicen 22+ 85h dis sack ee 4t

Burns v. Richardson, 384 U.S. 73___--------------.. 5

Cipriano v. City of Houma, 286 F. Supp. 823, pending

on appeal, No. 705, this Term_-_--__-_--.-.____._ 32

Cooper v. Aaron, 358 U8. 1... . 2.22.22. 21,22

Delozier v. Tyrone Area School Board, 247 F. Supp. 30. M4,

16, 17, 18, 2

Detroit Edison Co. v. East China Township School

District No. 3, 247 F. Supp. 296, affirmed on other

grounds, 378 F. 2d 225, certiorari denied, 389 U.S.

ORAS Sein epnn ime neue sl sp dusinsna+s ecg 13, 14

Elberti v. Kunsman, 254 F. Supp. 870__.-__..--___. 13

Ellis v. Mayor and City Council of Baltimore, 352 F. 2d

BOO Ab oti dad daisaidie caSl ies ood~ ake 5

Fairley v. Patterson, No. 25, this Term, decided

ee Se ey pee * 41

Goss v. Board of Education, 373 U.S. 683______..___- 22

Gray v. Sanders, 372 U.S. 368_....-.-....------__. 10, 15.

Hartman v. City and County of Denver, 440 P. 2d 778-_ 5.

Harper v. Virginia Board of Elections, 383 U.S. 663... 2

Kramer v. Union Free School District No. 15, 379 F.

Kramer v. Union Free School District No. 15, 282 F.

Supp. 70,pending on appeal, No. 258, this term. 12, 31, 32

Meyer v. Campbell, 152 N.W. 2d 617--.. 12, 14, 17, 18, 19, %

Pitts v. Kunsman, 251 F. Supp. 962__._..._.______- 13

Reynolds v. Sims, 377 U.S. 583___.-..--...---- in passim.

Sailors v. Board of Education, 254 F. Supp. 17, af-

PE tt Aa A oe ie i cn sk in passim

South Carolina v. Kaizenbach, 383 U.S. 301_________- 4l

Strickland v. Burns, 256 F. Supp. 824__ 14, 15, 16, 17, 18, 20

Thompson v. Board of Directors of the Turlock Irriga-

tion District, 29 Court Decisions on Legislative

pA ee ee

(gses—Continued

Tinker v. Community School District, No. 21, this Term,

decided February 24, 1969_...__....____.__.._.___

Wesberry v. Sanders, 376 U.S. 1__....-.--_-_-__-_____.

Constitution and statutes:

U.S. Constitution:

Fourteenth Amendment---____..._....._______

Page

3,10

amended, 20 U.S.C. (Supp. IT) 2412 et seg., 821 et seq. _ 38

National Defense Education Act, as amended, 20 U.S.C.

Bt in on een nccesessnecescdtecneoncconsce= 38

National School Lunch Act, 42 U.S.C. 1751 et seg...___- 38

Voting Rights Act of 1965, 42 U.S.C. (Supp. II) 1973 et seq... 40

Missouri Revised Statutes:

Elin igen Ratetaee, Sugai eae 5

on ee cw adnan 6

I UI is i esis de wih Si gidasin Bei Sin iets 2

ERA EE age a 6

ce oe sn wie ee 6

Miscellaneous:

Comment, 19 S.C.L. Rev. 839 (1967)_______________ 12

Department of Commerce, Bureau of the Census,

Governmental Finances in 1966-67.______._____ 36, 37, 38

Department of Commerce, Bureau of the Census,

1967 Census of Governments, Vol. 1, “Govern-

mental Organization’’....................... 17, 24, 44

Dixon, Local Representation: Constitutional Mandates

and Apportionment Options, 36 Geo. Wash. L. Rev.

on, RE a Ee ified eee

Martin, The Supreme Court and Local Government

Reapportionment: The Second Phase, 21 Baylor L.

EERIE asks ie es. re

McKay, Reapportionment and Local Government, 36

Geo. Wash. L. Rev. 713 (1968)__-____________ 12, 26, 34

Note, 47 N.C.L. Rev. 413 (1969)__.______.__._.___

eee | a

Note, 21 Vand. L. Rev. 153 (1967)___._._._...._.____

Note, 21 Vand. L. Rev. 1104 (1968)__.___..____.___

Note, 53 Va. L. Rev. 963 (1967)__...__........____

Sentell, Avery v. Midland County: Reapportionment and

Local Government Revisited, 3 Ga. L. Rev. 110 (1968) -

nthe Supreme Gout of the Wnited Sates

No. 938

DetLta HADLEY, ET AL., APPELLANTS

Vv.

Tue JuNIoR CoLLEGE District oF METROPOLITAN

Kansas Crry, Missouri, ET AL.

ON APPEAL FROM THE SUPREMBP COURT OF MISSOURI

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINIONS BELOW

The majority and dissenting opinions of the Su-

preme Court of Missouri (A. 25-37, 37-51) are re-

ported at 432 S.W. 2d 328. The Circuit Court of

Jackson County, Missouri, in which the suit was

brought, wrote no opinion (see A. 15-16).

| - JURISDICTION

- The judgment of the Supreme Court of Missouri

was entered on September 9, 1968 (A. 24), and a timely

petition for a rehearing was denied on October 14,

198. A notice of appeal was filed on November 14,

1968, and the jurisdictional statement was filed on

January 13, 1969. Probable jurisdiction was noted on

(1)

March 3, 1969 (393 U.S. 1115). The jurisdiction ¢

this Court is invoked under 28 U.S.C. 1257 (2),

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVE

Section 1 of the Fourteenth Amendment ty the

United States Constitution provides, in pertinen,

part:

* * * No State shall * * * deny to any person

within its jurisdiction the equal protection of

the laws.

Section 178.820 of the Revised Statutes of Mis.

souri provides, in pertinent part, as follows:

TRUSTEES ELECTED aT LARGE OR From Compo.

NENT Districts—TERMs—QUALIFICATIONS

1. In the organization election six trustees

shall be elected at large, except that if there

are ™ the proposed junior college district one

or more school districts with more than thirty-

three and one-third per cent and not more than

fifty per cent of the total school enumeration

of the proposed district, as determined by the

last school enumeration, then each such distrie

shall elect two trustees and the remaining trus-

tees shall be elected at large from the remainder

of the proposed district. If any school district

has more than fifty per cent and not more than

sixty-six and two-thirds per cent of the total

school enumeration of the proposed district

then three trustees shall be elected at large

from such school district and three trustees at

large from the remainder of the proposed dis-

trict. If any school district has more than

sixty-six and two-thirds per cent of, the total

school enumeration of the proposed district

then four trustees shall be elected at large from

such school district and two trustees elected at

large from the remainder of the proposed di

trict. If the trustees are elected at large

throughout the entire proposed district, the

two receiving the greatest number of votes

shall be elected for terms of six years each,

the two receiving the next greatest number of

votes, for terms of four years each, the two

receiving the next greatest number of votes,

for terms of two years each. If the trustees

are elected in any manner other than at large

throughout the entire proposed district, then

the trustees elected shall determine by lot the

two who shall serve for six years, the two who

shall serve for four years and the two who shall

serve for two years. The period of time between

the date of the organization election and the

date of the first regular election of the junior

college district is considered a full two years in

the terms of the directors. Thereafter, all trus-

tees elected shall serve for terms of six years

each.

QUESTION PRESENTED

Whether the equal-population principle enunciated

in Reynolds v. Sims, 377 U.S. 533, and related cases,

and applied to the local governmenta! level in Avery

y. Midland County, 390 U.S. 474, extends to the dis-

trict-based election of members of school boards.

INTEREST OF THE UNITED STATES

The United States has consistently participated as

amicus curiae in significant cases involving alleged

malapportionment, from Baker v. Carr, 369 U.S. 186,

through Wesberry v. Sanders, 376 U.S. 1, and

Reynolds v. Sims, 377 U.S. 533, to Avery v. Midland

County, 390 U.S. 474. Our role in those cases was

prompted by the importance of the fundamental Tight

sought to be effectuated—the right of each citizen to

full, fair and effective participation in the electova)

process, at all levels of government, on an equal basis

and without regard to where he happens to reside, The

instant case at least potentially presents the broad

question whether the equal-population principle of

Reynolds, held applicable to local governing. bodies

generally in Avery, applies as well to school boards

whose members are elected from districts. Our par-

ticipation here thus seems warranted to vindicate the

public interest in fair representation on those im-

portant bodies of local government.

STATEMENT

Appellants are citizens and taxpayers of the Kansas

City, Missouri, school district and of appellee junior

college district. They brought suit in the Cireuit Court

of Jackson County, Missouri, challenging the constitu.

tionality, principally under the Equal Protection

Clause of the Fourteenth Amendment to the United

States Constitution, of the method prescribed by See-

tion 178.820 of the Revised Statutes of Missouri for

the election of trustees of the Junior College District

of Metropolitan Kansas City (see A. 4-11). Appel-

lants sought both declaratory and injunctive relief

(see A. 11-13). Appellees, the junior college district,

certain officials thereof (ineluding four of its five

trustees), and the Attorney General of Missouri,

moved to dismiss the action on the ground that the

petition failed to state a claim upon which relief could

be granted.

Appellee junior college district is one of eleven such

junior college districts in Missouri. In six of them the

bards of trustees are elected under the statutory

formula prescribed in Section 178.820, and in five they

are elected at large. The district here involved was

organized in 1964 pursuant to a vote of the people,

and it comprises the metropolitan area of Kansas

City, Missouri, along with certain outlying sections,

approximately 400 square miles overall. Contained

within this district are eight local school districts,

including the Kansas City School District, the ‘‘school

enumeration” * of which, during the past four years,

has varied between 59.49 percent and 63.55 percent of

the total school enumeration of the entire district.

Under the formula prescribed by the statute chal-

lenged by appellants, only three of the six trustees

‘See Mo. Rev. Stat., § 167.011, which requires that “the

school board of each district in the state shall cause to be taken

*** an enumeration of all persons between the ages of six

and twenty years, resident within the district * * *.” Such an

enumeration may be taken annually, but is required to be

obtained at least once every five years. School enumeration

figures, rather than total population figures, were utilized

throughout the instant litigation, by both courts and parties,

without serious challenge (see A. 18). The figures used here, it

should be noted, were for the 1966-67 school year (see A. 23).

Absent any showing to the contrary, it is reasonable to assume

that these figures bore a consistent relationship to total popula-

tion figures throughout the area, and that they were not used

for any evasive or improper purpose—but rather simply because

they were readily available and more current than federal cen-

sus figures would have been. See, ¢.g., Burns v. Richardson, 384

US. 73, 90-97; Ellis v. Mayor and City Council of Baltimore,

$2 F.2d 123, 126-130 (C.A. 4); Hartman v. City and County

of Denwer, 440 P.2d 778, 781-782 (Colo. Sup. Ct.).

351-217—69——-2

who serve as members of the junior college district's

board—or 50 percent—are elected from the Kansas

City School District? The powers, functions ang

duties of junior college districts under Missouri law

are prescribed in Sections 178.770 through 178.890 of

the Revised Statutes of Missouri. Included among the

powers of such junior college districts—which parallel

those of other school districts in the State—are the

power to sue and be sued, to levy and collect taxes

within prescribed statutory limitations, to issue bonds

within prescribed statutory restrictions, to administer

the junior college system wthin its area, including the

hiring and firing of teachers and employees, the let.

ting of contracts, the collection of fees, and the super-

vision of student discipline, to pass on the annexation

of school districts to the junior college district, and

to acquire real property by condemnation (see A. 40,

n. 1). The basic function of the junior college districts

is to supervise the operation of a program of two-year

public education at the college level within their re-

spective areas (see Mo. Rev. Stat., § 178.850).

All of the above data was before the circuit court,

Appellants contended that the equal-population prin-

ciple of Reynolds was applicable to the election of

*Figures for each of the other five junior college districts

whose trustees were elected from districts showed similar dis-

parities from population-based representation, all i

necessarily against the more populous areas, which is the inevi-

table effect of the statutory formula (see A. 23). These figures,

it might be pointed out, were for the 1963-64 school year

(ibid.). Under the statutory formula, it might be noted, a com-

ponent district having in excess of 90 percent of the area's

total population would be entitled to elect only four of the six

junior college district trustees (see supra, p. 2).

junior college district trustees, and that the existing

jitricting scheme, under the statutory formula, in-

ydiously discriminated against residents of the dis-

favored Kansas City School District. Appellees

responded that, even if Reynolds did apply to local

podies exercising general governmental powers, it was

inapplicable to special-purpose units like school

hoards which exercised essentially administrative and

not legislative powers. On December 2, 1966, the

lower court entered an order sustaining appellees’

motions to dismiss, and thereafter overruled a motion

for rehearing or new trial and entered a final judg-

ment dismissing appellants’ petition and cause of

action with prejudice (A. 15-16).

Appellants then took an appeal, under stipulated

facts, to the Supreme Court of Missouri (see A.

16-23). That court reviewed the various contentions

of the parties, and ultimately determined that the

lower court had properly dismissed appellants’ suit.

In substance, the Missouri court concluded that this

Court’s intervening decision in Avery was not con-

trolling because that case involved a ‘‘general govern-

ing body” of a county exercising both legislative and

administrative functions; found that this Court’s

earlier decision in Sailors v. Board of Education, 387

U.S. 105, was closely parallel because it involved a

school board performing ‘‘esssentially administrative

functions” and, in the Missovri court’s view, did not

turn on the non-elective method by which the mem-

bers of the board there involved were selected; and

rejected the holdings and reasoning of a number of

lower court cases involving the application of the

equal-population principle to local governing:

including several decisions relating to school wae

Relying on the consideration that school districts are

special-purpose, single-function units of loca). gov.

ernment, as distinguished from counties or cities, ang

postulating that the powers of the junior college dis.

trict here involved were rather limited in scope, the

Missouri court held that the equal-population prin.

ciple was inapplicable and that the method by whieh

junior college district trustees were elected under the

pertinent statute was consistent with the Fourteenth

Amendment. Accordingly, it affirmed the judgment

below, with one judge dissenting (A. 25-51).

ARGUMENT

INTRODUCTION AND SUMMARY

At the outset, it should be noted that the instant

case is somewiat atypical, in that the immediate sub.

ject is not the common type of independent school

district found throughout the country, operating local

elementary and secondary public schools within a spec-

ified geographic area. Rather, the responsibility of

the unit of government involved here extends only to

the administration of a junior college system within a

certain part of Missouri. Nonetheless, the powers and

functions of the junior college district trustees closely

parallel those of school board members seeps and

the Missouri arrangement is far from unique.’ This,

in our view, the case at least potentially presents the

*Some 30 of our States make provision for community or

junior college districts (see Appendix, infra, pp. 43-44).

proad issue whether the equal-population principle of

and Avery applies to the district-based elec-

tion of school board members generally. It is to that

important question—which presumably remains un-

resolved despite this Court’s decision in Avery—that

we direct the substance of our argument,

In the course of developing that argument, we show

frst that nothing in this Court’s decision in the

Sailors case, on which the Missouri court here placed

extensive reliance, prevents application of the equal-

population principle to elected school boards, since

the scheme there involved was characterized by this

Court as an appointive, not an elective, one (infra,

pp. 10-13). Next, we point out that lower court de-

cisions, both before and after Sailors was decided, have

consistently held that the equal-population principle

is applicable to elected school boards (infra, pp. 13-20).

Then, turning to this Court’s decision in the Avery

ease, we show that both the holding and opinion there,

as well as the underlying rationale, strongly support

application of the equal-population prineiple to elected

school boards (infra, pp. 21-26). We next direct our

attention to the points of distinction relied upon by

the Missouri court, and demonstrate that neither the

fact that a school board may be thought to exercise es-

sentially administrative as distinguished from legis-

lative powers, nor the fact that school districts are

special-purpose, single-function units of local govern-

ment, makes the rationale of Reynolds and Avery in-

applicable (infra, pp. 26-34). Finally, we endeavor to

show that weighty considerations of public policy,

as well as sound legal reasoms, favor application of

the equal-populaticn principle to elected school —

(infra, pp. 34-42).

I. NOTHING IN THIS COURT’S DECISION IN THe

SAILORS CASE PREVENTS APPLICATION OF THE

EQUAL-POPULATION PRINCIPLE TO ELECTED

SCHOOL BOARDS

Since the court below placed considerable reliance

on this Court’s decision in Satlors in determining

that the equal-population principle was inapplicable

here, we turn initially to a discussion of that cage,

As summarized in Avery, the Sailors decision “up.

held a procedure for choosing a school board that

placed the selection with schooi boards of component

districts even though the component boards had equal

votes and served unequal populations,’”’ because of

the “administrative nature of the area school board’s

functions and the essentially appointive form of the

scheme employed’’ (390 U.S. at 485). In our view,

that ruling is not controlling here in light of the

essentially different situation presented.

Sailors did not involve a board having general

authority over public education within a geographie

area. More importantly, there the board was not

elected at all, but was selected by delegates from each

of the local school boards located within the county

(387 U.S. at 109-110, n. 6). In distinguishing Reynolds

and cases such as Gray v. Sanders, 372 U.S. 368, and

Wesberry v. Sanders, 376 U.S. 1, the Court in Sailors

pointed out that ‘‘[t]hey were all cases where elee-

tions had been provided and cast no light on when

a State must provide for the election of local offi-

gials”’ (387 U.S. at 108). In the Satlors opinion the

Court further noted that, even were it to “‘assume

arguendo that where a State provides for an election

of a local official or agency, the requirements of Gray

y. Sanders and Reynolds v. Sims must be met * * *,”’

that would not resolve the question whether, con-

sistent with the Equal Protection Clause, “Michigan

may allow its county school boards to be appointed”’

(id. at 109). Having found the “system for selecting

members of the county school board’’ there involved

to be “basically appointive rather than elective,’’ the

Court regarded it as unnecessary to decide ‘‘whether

a State may constitute a local legislative body through

the appointive rather than the elective process’ (id.

at 109-110). That was so, the Court stated, since the

county school board there involved ‘‘performs essen-

tially administrative functions’’ which “are not legis-

lative in the classical sense” (id. at 110). In conelud-

ing its opinion in Sailors, the Court again reiterated

the essence of its narrow holding, stating: “Since the

choice of members of the county school board did not

involve an election and since none was required for

these nonlegislative offices, the principle of ‘one man,

one vote’ has no relevancy”’ (id. at 111).

Thus, despite the fact that Sailors, like the instant

ease, involved a school board, that decision is inap-

posite here. Sailors holds no more than that the equal-

population principle is inapplicable where members of

a local governmental body exercising essentially ad-

ministrative functions are appointed rather than

elected. The court below improperly relied on the

characterization of the Kent County Board of Educa-

tion as ‘‘administrative” as entailing the basi¢ ratio

decidendi. In fact, that language in the Sailors. opin.

ion was addressed to the question whether the

there involved could constitutionally be chosen by an

appointive instead of elective scheme. It could, the

Court concluded, because its functions were basically

administrative and not legislative in character—the

opinion leaving unresolved the question whether a

local legislative body may be constituted through the

appointive rather than the elective process. That is-

sue is not presented here, since it is undisputed that

junior college distriet trustees in Missouri are elected,

not appointed. The straightforward question here is

whether there is anything about school boards in gen-

eral, or the particular body involved, which exempts

them from the equal-population principle of Reynolds,

as applied to the local level generally in Avery. In

resolving that issue Sailors is simply not helpful;

and the Missouri court’s conclusion that “the non-

*This has been the consistent view of the courts and the

commentators that have considered Sailors, particularly in view

of the later holding in Avery. See Meyer v. Campbell, 152

N.W. 2d 617, 620-623 (Iowa Sup. Ct.) (discussed infra, pp. 18-

20) ; cf. Kramer v. Union Free School District No. 16, 282 F. Supp.

70, 74 (E.D.N.Y.), pending on appea’, No. 258, this Term. See also

Dixon, Local Representation: Constitutional Mandates and Ap-

portionment Options, 36 Geo. Wash. L. Rev. 693, 698-699

(1968); McKay, Reapportionment and Local Government, 36

Geo, Wash. L. Rev. 713, 723-724, 730, 736-737 (1968) ; Martin,

The Supreme Court and Local Government Reapportionment:

The Second Phase, 21 Baylor L. Rev. 5, 15-16 (1969) ; Sentell,

Avery v. Midland County: Reapportionment and Local Gov-

ernment Revisited, 3 Ga. L. Rev. 110, 116 (1968) ; Comment,

19 S.C.L. Rev. 839, 844-845 (1967) ; Note, 47 N.C.L. Rev, 413,

416 (1969); Note, 21 Vand. L. Rev. 1104 (1968); Note, 2

Vand. L. Rev. 153 (1967); Note, 22 Sw. L.J. 542 (1968).

legislative character of the board in Sailors was the

determining factor” (A. 36) does not withstand close

analysis of that decision.’

fl. LOWER COURT DECISIONS, BOTH BEFORE AND

AFTER SAILORS WAS DECIDED, SUPPORT APPLI-

CATION OF THE EQUAL-POPULATION PRINCIPLE

1] ELECTED SCHOOL BOARDS

The lower court in Sailors was not the only one to

confront the issue whether the equal-population prin-

ciple of Reynolds should be applied to elected school

hoards. At least two other federal district courts

squarely faced that question prior to this Court’s

decision in Sailors,’ and both resolved it in favor of

*The limited relevance of Sailors, in view of the distinguish-

ing features there involved, was aptly perceived © 7 the dissent

here (see A. 49).

¢In several other cases the same question was raised but was

not reached. See Pitts v. Kunsman, 251 F. Supp. 962 (E.D.

Pa), which related to the composition of an interim body

sélected in a manner not dissimilar to the méthod involved in

Sailors to operate the public school system during a period of

consolidation of small, local school districts. There the court,

while aseuming the applicability of ti equal-population prin-

ciple to elected school boards as a general matter (see id. at

964-965), found that principle inapplicable on the special facts

there presented (ébid.) and decided the case on State law

grounds (id. at 966-968), ultimately holding the interim body

to be improperly constituted. See also Elberti v. Kunsman, 254

F. Supp. 870 (E.D. Pa.), involving a virtually identical con-

troversy, where the court found “no federal constitutional

infirmity” for the reasons discussed in its opinion in Pitts (id.

at 871), but again found the interim body’s composition im-

proper on State law grounds (id. at 871-873). Detroit Edison

(0. v. East China Township School District No. 3, 247 F. Supp.

298 (E.D. Mich.), affirmed on other grounds, 378 F. 2d 225

(C.A. 6), certiorafi denietl, 389 U.S. 932, is inapposite, since it

involved only a collateral attack on the composition of a local

school board and was decided essentially on grounds which did

351-217-693

pantera nme — =e

the principle’s applicability. Delozier v. Tyrote Arep

School Board, 247 F. Supp. 30 (W.D. Pa.) ; Strick,

land v. Burns, 256 F. Supp. 824 (M.D. Tenn.}, Singg.

those two decisions predate both Sailors and Avery,

and since only one other court, even since Avery, hag

apparently considered this issue—the Iowa Supreme

Court in Meyer v. Campbell, 152 N.W. 2d 617

(discussed infra, pp. 18-20)—Delozier and Strick.

land, along with Meyer, warrant some detailed

consideration.

In Delozier the districting scheme for a newly

fashioned area school board, resulting from the con-

solidation of previously separate school districts, was.

attacked as deviating substantially from the equal-

population principle of Reynolds. Under that scheme,

the geographic area encompassed by the new unit

was divided into nine districts, each of which was to.

elect one representative to serve on the area school

board (247 F. Supp. at 32). The largest district had

about seven times the population of the smallest

(tbid.). In concluding that the equai-population prin-.

ciple was not limited to statewide elections of legis-

lative bodies, the district court there rejected the.

argument that (id. at 34)

*** the status of a local school district,

being an arm or agency of the state legislature

not require reaching the issue whether Reynolds applied to

elected school boards, although the district court in dicta indi-

cated that, in its view, it did not (see id. at 300-302). Holding-

that the annexation procedure there directly challenged was not

invalid, the Sixth Circuit affirmed, expressing no view on the

question of Reynolds’ applicability (378 F. 2d at 228-230), andi

certiorari was denied by this Court.

to administer its educational system makes it

immune from the constitutional requirement

[of Reynolds and Gray v. Sanders]. * * *

Continuing, the court reasoned that (id. at 35)

[t]he legislature of the State of Pennsylvania

has delegated the management of its educa-

tional system in local areas to local school

boards. These boards, in the class of school

district in the present case, and in most other

classes, are elected by popular vote. The state

has also delegated to such boards the power to

levy taxes, and in most communities the vari-

ous taxes levied by the school boards are the

largest local tax imposition. While school

boards are subject to numerous limitations in

the exercise of local powers, these limitations

are no less in scope or variety than the

limitations imposed on other governmental sub-

divisions or municipal corporations. The en-

croachment of state control and the extent and

variety of state financial aid extends to all forms

of political subdivisions in the state as well as

to school boards.

Noting that the equal-population ‘principle has been

applied to various elective bodies, local, municipal,

county and school districts, where that body is elective

and exercises legislative powers” (tbid.), the district

court determined that ‘‘the plan of representation

[there] adopted * * * violates the mandate of [the]

Equal Protection Clause of the Fourteenth Amend-

ment to the Constitution of the United States” (id.

at 36).

‘In similar fashion, the district court in Strickland

held that the equal-population principle applied to a

county sehool beard whose members were elected on

2 district basis. There a Tennessee statute provided

for the election of the eleven members of the county

school commission from unequally populated school

zones, one of which ‘‘contain[ed] at least one-third

of the eounty’s total population and [was] from

three to fifteen times more populous than the other

zones” (256 F. Supp. at 825). As noted by the dis-

trict court, the board’s powers “include, inter alia,

the hiring of teachers and other school employees,

regulation of pupil transportation, the approval of

an annual school budget and the purchase of sup-

plies and equipment” (ibid.). Significantly, the

board did not have any power of taxation, as noted

by the dissent (id. at 836). Nonethless, the court de-

termined that the districting scheme diluted the ef-

ficacy of the votes of those residing in the populous

areas and deprived them of equal representation on

the beard. It rejected the contention that ‘‘a local

representative governmental body which is primarily

administrative rather than legislative in character”

(id. at 825) need not conform to the equal-population

principle (id. at 827). Concluding that ‘‘the ra-

tionale of * * * Reynolds * * * is logically as applica-

ble to the backwaters of representative government at

the local level as to the fountainhead of representa-

tive government at the state level” (id. at 826), the

court reviewed and relied upon a number of other

local government apportionment decisions, including

Delozier (ibid.). In holding the existing discrimana-

tion “invidious’’, the district court stated (id. at 827):

Since we can find no basis for applying the

“one man, one vote” rule to the congeries of

powers possessed by the Legislature itself and

at the same time denying its application to a

subordinate body simply because it possesses a

fractional part of those powers, so long at least

as the fractional part cannot be said to be in-

significant or unimportant, we * * * hold that

the apportionment provisions of the Act com-

plained of are void as violative of rights secured

by the Equal Protection Clause of the Fourteenth

Amendment.’

Thus, the only two reported decisions on the ques-

tion whether Reynolds applied to elected school boards

prior to this Court’s decision in Sailers, aside from

the lower court decision in Sailors itself (254 F. Supp.

17),’ held the equal-population principle applicable.

7A concurring opinion noted, almost in anticipation of the

Court’s holding in Avery in this regard, that “[i]t is fruitless

* * * to pursue the elusive distinction between legislative and

administrative functions,” and suggested that “[s]o long as a

subordinate body is vested with significant and important pow-

ers of government, whether they be labelled legislative, or

administrative, or both, [there is] no reason why it should be

permissible under the equal protection clause for a state arbi-

trarily to debase the value of one person’s vote in favor of

another” (id. at 836).

*It should be noted that the county school board involved in

Sailors, as distinguished from those involved in the Delozier

and Meyer cases (but like that in Strickland), is not classified

as an “independent school district” by the Bureau of the Cen-

sus. See Dept. of Commerce, Bureau of the Census, 1967 Census

of Governments, Vol. 1, “Governmenta] Organization”, p. 371.

Such intermediate Michigan school districts are treated for

statistical purposes “as joint activities of constituent school

districts” (ibid.), while the units involved in the Pennsylvania

and Iowa cases are regarded as separate units of local govern-

Both Delozier and Strickland, it might be pointed out,

were referred to by this Court with apparent approval

in its opinion in Avery (see 390 U.S. at 479, nn. 3, 4),

Subsequent to this Court’s decision in Sailors, but

before Avery had been decided, the Iowa Supreme

Court considered the question whether the equal-

population principle was applicable to elected school

boards, and concluded that it did apply. Meyer vy.

Campbell, 152 N.W. 2d 617. There the body in-

volved was a county school board which exercised

general supervision over public education within

the entire geographic area. And there a state

statute provided for the election of county school

board members (except for one member elected at

large) from four election areas ‘‘as nearly as possible

of equal size and contiguous territory” (id. at 619).

Thus, the voters of each area would elect two members

of the board, the one from their election area and the

at-large member. One election area contained a con-

siderably larger number of people than the other

three, which were roughly equal in population (ibid.).

Reading Sailors as holding simply that the equal-

population principle was inapplicable to school boards

exercising essentially administrative functions when

the members thereof were appointed rather than being

elected, the Iowa court concluded that “[w]hen the

legislature changed the method of selection of the

ment (see Appendix, infra, pp. 43-44). Moreover, the majority

opinion of the three-judge court in Sailors said little more than

that it was expedient to wait for this Court to determine

whether the equal-population principle should be applied at the

local governmental level (see 254 F. Supp. at 28-29). Compare,

however, the dissenting opinion (id. at 18-28).

county boards to elective rather than appointive * * P

the members [thereof] then became the direct repre-

gentatives of the people, and the state and federal

constitutions require their election on an equal repre-

sentation basis” (td. at 620). This was so, the court

indicated, because ‘‘[t]he fact that an elective method

of selection has been «10sen implies that each citizen

is thought to have an equal stake in [the] composition

[of such school boards]’’ (ibid.). Satlors was readily

distinguished as having ‘‘dealt with the appointment

of local administrative officials and not the election

of them’’ (id. at 621), and the Iowa court concluded

{ibid.) :

Since it is a basic principle of representative

government that the weight of a person’s vote

does not depend on geographical boundaries,

it follows logically that any inferior elective

body, that is representative of the people, be

representative of all the people equally. * * .

Since the Iowa legislature had chosen ‘“‘to make

members of the board elective rather than appointive,

it intended that these members represent the people

and not geographical land areas,” and “[eJach voter

similarly situated is entitled to equal reprsentation, a

the court determined (ibid.). Concluding that the

county school boards exercised “legislative functions”

(id. at 622), although of a limited and attenuated

variety, the Iowa court went on to hold that, consist-

ent with Sailors, “where the legislature chooses to sub-

mit the selection of an official or board to the elector-

ate, it is of no consequence whether its functions af-

fecting the personal and property rights of the people

are administrative or legislative” (id. at 623).° Ac

cordingly, the court held that the area-based district,

ing scheme was unconstitutional, and that the election

of county school board members “must be made on a

population basis, not upon area” (id. at 624).

Haying the benefit not only of the decisions and

opinions in Delozier, Strickland and Meyer, but also

the gloss of this Court’s discussion and holding in

Avery, it is surprising that the court below—which

had earlier held the equal-population principle ap-

plicable to the election of city council members in

Armentrout v. Schooler, 409 S.W. 2d 138 (Mo. Sup,

Ct.)—rejected the reasoning of these cases and con-

cluded that the equal-population principle was inap-

plicable to the election of school boards. In so doing,

the Missouri court invoked Sailors, charging the Iowa

Supreme Court in Meyer with having ‘misconstrued

the opinion in Sailors” (A. 34). We have already

indicated why any reliance on Sailors in this regard

is misplaced. It remains to show that the efforts of

the court below to distinguish Avery are unconvine-

ing, and it is to that decision that we now direct our

attention.

* This, of course, is exactly what this Court determined in

Avery in regard to the suggested distinction between legisla-

tive and administrative functions, albeit there as to a county

governing body and not a school board (see 390 U.S. at 482).

*° The Missouri court rejected Delozier and Strickland along

with Meyer, viewing the courts in all of them as having erred

in failing “to distinguish between school districts and local

bodies having general governmenta] powers and functions” (A.

34), obviously seeking, in suggesting such a distinction, to rely

on this Court’s decision and opinion in Avery (see 390 US.

at 485-486).

COUBT IN THE AVERY CASE, AS WELL AS ITS UN-

DERLYING RATIONALE, SUPPORT APPLICATION

OF THE EQUAL-POPULATION PRINCIPLE TO

ELECTED SCHOOL BOARDS

In Avery the Court put to rest the confusion and

uncertainty which had theretofore existed by holding

that the equal-population principle of Reynolds was

generally applicable at the local governmental level.

That case involved a county governing body, while

the instant case involves 4 school board. Because of

this difference, and in reliance on certain language in

the Court’s opinion in Avery as well as on Sailors,

the Missouri court here found Avery not controlling.

In so concluding, we submit, the court below erred.

Carefully analyzed, both the holding and opinion in

Avery provide substantial support for application of

the equal-population principle to elected school boards.

Moreover, the underlying rationale of that decision,

just like that of Reynolds and similar cases, argues

strongly for holding that when members of a local

school board are elected, under state or local law, by the

people on a district basis, those districts are required by

the Equal Protection Clause to be substantially equal in

population.

In its opinion in Avery the Court started with the

estabished proposition that “ [t]he Equal Protection

Clause reaches the exercise of state power however

manifested, whether exercised directly or through

subdivisions” (390 U.S. at 479). Interestingly, it cited

and quoted from Cooper v. Aaron, 358 U.S. 1, in sup-

port of this proposition (390 U.S. at 479-480). Cooper

v, Aaron was of course a case involving a school board,

just like the instant case. The Court then expanded

further on this theme, stating that “ [a]lthough the

forms and functions of local government and the

relationships among the various units are matters of

state concern, it is now beyond question that a State’s

political subdivisions must comply with the Four-

teenth Amendment”’ (390 U.S. at 480). School boards,

like other local bodies, are subject to and are required

to comply with the Equal Protection Clause in regard

to matters such as racial discrimination. E.g., Brown

v. Board of Education, 347 U.S. 483; Goss v. Board

of Education, 373 U.S. 683; Bradley v. School Board,

382 U.S. 103. There can be no doubt, then, that the

actions of school districts, no less than the actions of

counties, cities and towns, are within the ambit of

the Equal Protection Clause.

Next the Court in Avery directed its attention to

the specific issue of apportionment. It first stated that

“when the State delegates lawmaking power to local

government and provides for the election of local of-

ficials from districts specified by statute, ordinance,

or local charter, it must insure that those qualified to

vote have the right to an equally effective voice in the

election process” (390 U.S. at 480). Then, in lan-

guage that appears to come close to resolving the

question presented in the instant case, the Court indi-

cated (tbid.) :

If voters residing in oversize districts are

denied their constitutional right to participate

in the election of state legislators, precisely the

same kind of deprivation occurs when the mem-

bers of a city council, school board, or county

governing board are elected from districts of

substantially unequal population. * * * [Em-

phasis added. }

That reference to school boards was of course dictum,

for the Avery case itself involved a county governing

poard. Nevetheless, the inclusion of school boards in

this listing is significant, indicating that the logical

sweep of the underlying rationale of the decision there

encompasses those bodies as well.

The opinion proceeds by stating: “That the state

legislature may itself be properly apportioned does

not exempt subdivisions from the Fourteenth Amend-

ment” (390 U.S. at 481). This is so, the Court noted,

because ‘‘the States universally leave much policy

and decisionmaking to their governmental subdivi-

sions,” and “do not attempt to reach those countless

matters of local concern necessarily left wholly or

partly to those who govern at the local level” (ibid.).

It is clear beyond cavil that “much policy and deci-

sionmaking”’ is consistently left to school districts,

and that such matters are preeminently ones “‘of local

eoncern necessarily left” in large part to school board

members. In noting that, with respect to local govern-

ing bodies, ‘‘the States characteristically provide for

representative government—for decisionmaking at

the local level by representatives elected by the peo-

ple” (tbid.), the Court’s language at least implicitly

included school boards. An extremely high percentage

of school board members in this country are selected

through the elective process—about 93 percent (see

Appendix, infra, pp. 43-44). Admittedly some 90 per-

cent of those elected are elected at large, rather than

from districts. Nonetheless, the fact that the vast major-

ity of school board members are elected rather than

appointed shows a considered preference for these

bodies being representative in character. Where they

are elected from districts, the ratiozale of the Court's

approach in Avery strongly supports application of

the equal-population principle there held applicable

to county governing boards similarly elected. School

districts, still the most numerous category of local

government despite continuing reduction in their

total number through consolidations, particularly in

rural areas,” are plainly “institutions of local gov-

ernment” which constitute “‘a major aspect of our

system” and whose ‘‘responsible and responsive oper-

ation is today of increasing importance to the quality

of life of more and more of our citizens’? (390 US.

at 481).

Turning to one of the central contentions made

against extending the equal-population principle

to the local governmental level, the Court in Avery

11 See Dept. of Commerce, Bureau of the Census, 1967 Census

of Governments, Vol. 1, “Governmental Organization,” p. 1, which

showed that, as of 1967, there were 81,248 units of local govern-

ment in the United States, of which there were 3,049 counties,

18,048 municipalities, 17,105 townships, 91,264 special districts, and

21,782 school districts. In addition to these 21,782 independent

school districts, there were also some 1,608 “dependent” school sys

tems, operated ia the main by other units of local government,

resulting in a total of 23,390 public school systems in this country

(id. at 6), the tota] enrollment of which amounted to about 43.8

million pupils, as of October 1966 (idéd.). The marked decline in

the total number of school districts during the past 25 years is

exemplified by the following chart (id. at 3):

Number of school districts

School year

ee me ee ee ee ee ee ee ee eee we ew eee

Ce aiid

hurriedly dismissed any reliance on labelling the

funetions of a particular body as ‘‘administrative”’

or “‘legislative’’, noting that the body there involved,

and by implication most local governing bodies, “‘can-

not easily be classified in the neat categories favored

by civies texts” (id. at 482). Recognizing that most

local bodies have an amalgam of powers and functions

which defy singular characterization, and that these

bodies are not only numerous but extremely diverse,

the Court determined instead to take a “pragmatic

approach’? to the problem of determining which of

them were covered by the equal-population principle

(id. at 482-483). Finding that the board there involved

had “‘the authority to make a substantial number

of decisions that affect all citizens” of the county

(id. at 484), the Court held the Equal Protection

Clause ‘“‘permits no substantial variation from equal

population in drawing districts for units of local

government having general governmental powers over

the entire geographic area served by the body’’ (td.

at 485). Again, in concluding, the Court reiterated

the “‘one ground rule for the development of arrange-

ments of local government’’ that it was laying down

in Avery—‘‘a requirement that units with general

governmental powers over an entire geographic area

not be apportioned among single-member districts of

substantially unequal population’’ (td. at 485-486 ) .

Thus, the question here, insofar as the relevance of

the Avery holding is concerned, resolves itself imto

whether school districts, like counties and cities, are

12 See, in this regard, Note, 53 Va. L. Rev. 953, 960-961,

965-966 (1967).

units of local government having general govern-

mental powers over the entire geographic area that

they serve.” In the instant case, the Missouri Sy-

preme Court answered that question negatively, and

concluded that Avery was inapplicable to elected

school boards. That determination, we submit, was

erroneous, for school districts, despite their special-

purpose, single-function status, are nonetheless units

of local government with general powers over the area

they serve in regard to the critical subject of educa-

tion. It is to this issue, on the basis of which the

Missouri court distinguished Avery, that we now turn.

IV. NEITHER THE FACT THAT A SCHOOL BOARD MAY

BE THOUGHT TO EXERCISE ADMINISTRATIVE AS

DISTINGUISHED FROM LEGISLATIVE POWERS,

NOR THE FACT THAT SCHOOL DISTRICTS ARE

SPECIAL-PURPOSE, SINGLE-FUNCTION UNITS OF

LOCAL GOVERNMENT, MAKES THE RATIONALE OF

REYNOLDS AND AVERY INAPPLICABLE

As discussed earlier (supra, pp. 12-13), the Missouri

Supreme Court, in holding the equal-population prin-

ciple inapplicable, repeatedly intimated that the

body involved here is not covered by the equal-popu-

lation principle because its functions are essentially

administrative and not legislative in character. Put-

ting to one side the court’s misplaced reliance on Sail-

ors, and its misreading of Avery in this regard, we

now turn to that argument directly.

As we developed at some length in our amicus brief

in the Avery case,“ the constitutional touchstone of

” 38 See, 2.9., McKay, Reapportionment and Local Government,

36 Geo. Wash. L. Rev. 713, 729 (1968).

* See brief for the United States as Amicus Curiae, Avery v.

Midland County, No. 39, 1967 Term, pp. 41-57.

the Court’s decision in Reynolds is the Equal Pro-

tection Clause, and the focus of the Court there was

on the individual voter, not on the nature of the bodies

whose apportionment was at issue. The essence of

Reynolds—and of Avery’s application of Reynolds to

local government—is that a citizen’s right to vote,

where conferred under State law, cannot be diluted or

debased simply because of where, within a particular

area, that person happens to reside. Unless the equal-

population principle is applied to the district-based

election of school board members, citizens similarly

situated would be treated differently, as to the weight

of their vote, on the basis of where they happen to

live, regardless of whether such a body be viewed as

administrative, or legislative, or executive, or some

combination of all of these.”

We further developed, in our Avery brief, the

notion that a legislative/administrative delineation

would not only be difficult to sustain as a constitu-

tional matter, but that it would moreover be wholly

impractical to seek to apply such a distinction at the

local governmental level. This stems from the fact

that most local bodies constitute the repositories of a

varied array of powers and frequently engage in a

18 We do not contend that there is anything in the nature of

school boards which requires that their members be elected,

instead of appointed. There is no need to reach any such issue

here, for an elective system is plainly provided for in the

instant case. Our position, then, is grounded essentially on what

this Court stated in Harper v. Virginia Board of Elections, 383

U.S. 663, 665: “[OJnce the franchise is granted to the electorate,

lines may not be drawn which are inconsistent with the Equal

Protection Clause * * *.”

number of different and diverse functions. This is go

not only with regard to general-function units like

counties and cities, but also with respect to at least

some more specialized units, such as school districts,

While the subject with which school boards deal is 4

single one, in doing so they undertake a variety of

tasks that defy easy description. Most school boards

have taxing powers (see Appendix, infra, pp. 43-44),

an authority traditionally viewed as legislative in

character and one of the important powers of the

county governing board in the Avery case which led

the Court to hold the equal-population principle ap-

plicable there (see 390 U.S. at 483-484). Like the

junior college district involved here, many school dis-

tricts have the power of condemnation as well. Many

of them, again as the unit here, have the authority to

issue bonds. And most of them exercise a number of

other powers regarding matters such as personnel,

curricula, transportation, discipline, and the like that

are not easily classified. Like other local bodies, school

boards have a mixture of powers which simply forbids

facile categorization. As we concluded in our Avery

brief, the sort of functional approach which some sug-

gest is one that, in point of fact, would prove unwork-

able in practice and virtually impossible of reasoned and

judicially economical application. That view, we sub-

mit, was adopted by this Court in Avery, and it

applies no less to school boards than to the county

governing board there involved.

Indeed, if anything, the instant case is an easier

one for application of the equal-population principle

than Avery. There the Court was faced with the dif-

feult problem of ‘‘overlapping jurisdiction.’’ The

(ourt in Avery had necessarily to concede that the

eunty board there involved concentrated much of

its attention on matters affecting the rural areas of

the county, while the city courgeil of Midland served,

in the main, as the general-function unit of local

government for residents of the urban area (see 390

U.S. at 483-484). Despite this, the Court found that

the county board had ‘‘the authority to make a sub-

¢antial number of decisions that affect all citizens,

whether they reside inside or outside the city limits

of Midland” (id. at 484). With respect to school

boards, however, no overlapping jurisdiction problem

is ordinarily presented. As a general matter, inde-

pendent school districts are autonomous with respect

to the matter of public education within the geo-

graphic area which they serve. No citizen living

within that area can be said to be affected in a

significantly different fashion by actions of his local

school board than another citizen situated in some

other part of the same area. In this respect, then, the

instant case presents less difficulty with respect to the

application of the equal-population principle than

Avery.

In spite of these considerations, the Missouri court

here found Avery distinguishable. In doing so it

reasoned that ‘‘[a] school district, unlike a municipal

corporation (city or county) is an instrumentality of

the state created for one single purpose and with one

single function,—education” (A. 34). The court then

proceeded to detail the powers and duties of a junior

college district under Missouri law—which do not

appear to differ significantly from those of the county

board involved in Avery except that they relate solely

to the subject of education—and concluded that such

a school district “has no power to do the multitude of

things which a city or a county may do under its

broad delegation of powers and its inherent powers”

(A. 35), language rather reminiscent of that of the

Texas Supreme Court in regard to commissioners

courts in that State (see 390 U.S. at 483). That

groundwork having been laid, the Missouri court

stated its result: ‘‘We hold that the defendant dis-

trict is essentially an administrative body created by

the legislature for the sole and special purpose of

conducting a 2-year college institution, and that it is

not a ‘unit of local government having general govern-

mental powers over the entire geographic area served

by the body’ ”’ (A. 36).

Thus, apart from its misplaced reliance on Sailors

and the legislative/administrative dichotomy, the Mis-

souri court, in the last analysis, found Avery distin-

guishable because of the fact that the school district

involved here, like all school districts, is a special-

purpose, single-function unit of local government

which, therefore, lacks ‘‘general governmental powers

over an entire geographic area” as required by the

opinion in that case. But school districts do, we sub-

mit, exercise such general governmental powers in the

sense that that phrase was intended to be used in the

Avery opinion.

As the opinion in Reynolds points out, the Equal

Protection Clause ‘‘has been traditionally viewed as

requiring the uniform treatment of persons standing

in the same relation to the governmental action ques-

tioned or challenged” (377 U.S. at 565). Applying

that settled principle, the result there flowed from a find-

ing that “‘[w]ith respect to the allocation of legisla-

tive representation, all voters, as citizens of a State,

stand in the same relation regardless of where they

live’ (ibid.). An obvious corollary is that where per-

sons are not similarly situated vis-d-vis the particular

body, different treatment is permissible and classifica-

tions are valid so long as they are rationally related

to and take properly into account the differences in

how the persons are situated. In the apportionment

context, where a governmental body’s actions do not

touch or involve all citizens generally, but only a dis-

erete and identifiable part of the citizenry in a sig-

nificant way, then a districting plan that rationally

takes this consideration into account may comport

with the requirements of the Equal Protection Clause,

even though entailing substantial deviations from a

population basis.”

It was in view of these considerations, it seems ap-

16 See, ¢.g., Thompson v. Boord of Directors of the Turlock

Irrigation District, 29 Court Decisions on Legislative Appor-

tionment (National Municipal League) 9 (Calif. Ct. App.),

where such an approach was taken with respect to the appor-

tionment of seats on the governing body of an irrigation dis-

trict, a special-function unit whose purpose was apparently

limited to distributing water to rural lands within its bound-

aries (see id. at 12-13). While holding the equal-population

principle inapplicable, the California court did find the dis-

tricting invalid as a matter of State law and required, that

some adjustment be effected (see id. at 14-18). Cf. Kramer v.

Union Free School District No. 15, 282 F. Supp. 70, 74-75

(E.D.N.Y.), pending on appeal, No. 258, this Term (but see

parent, that the court in Avery stated (390 U.S. at483_

484) :

Were the Commissioners Court a_ special-

purpose unit of government assigned the per.

formance of functions affecting definable groups

of constituents more than other constituents,

we would have to confront the question wheth-

er such a body may be apportioned in ways

which give greater influence to the citizens most

affected by the organization’s functions. * * *

There the Court went on to conclude that that ques-

tion was not presented, since the county governing

board involved had the authority to make a variety of

important decisions affecting all citizens of the county,

wherever they resided (id. at 484). In other words,

for Equal Protection Clause purposes, all citizens of

Midland County were situated in a substantially sim-

ilar fashion. It was against this background, more-

over, that the Court made reference to “units of local

government having general governmental powers over

the entire geographic area served by the body’’ as

being within the ambit of the equal-population prin-

the dissenting opinion in that case of Judge Weinstein, 282 F.

Supp. at 75-86, and compare the Missouri court’s reliance on

an article by the same individual for the proposition that “it

is doubtful if the one man, one vote principle should be applied

to special purpose units of local government which have lim-

ited purposes and functions” (A. 34-35) ). However the Kramer

case is decided by this Court, it should be noted, it will not

be dispositive in the instant case since Kramer is a voting, not

an apportionment, case. Cf. also Cipriano v. City of Houma,

286 F. Supp. 823 (E.D. La.), pending on appeal, No. 705, this

Term, like Kramer a voting, not an apportionment, case; and

see the Second Circuit’s earlier opinion in Kramer, reported at

879 F. 9d 491.

ciple (id. at 485). Thus, the Missouri court’s reliance

on this phrase as determinative, and its focus on the

fact that school districts are special-purpose, single-

function units of government as a ground for distin-

guishing Avery, are demonstrably inappropriate.

In our view, the fact that school districts are spe-

cial-purpose, single-function units of local government

is not determinative with respect to whether the equal-

population principle of Reynolds and Avery should

be held applicable to the district-based election of

school board members. Indeed, this consideration at

best merely poses the question the Court found it un-

necessary to reach in Avery—whether deviations from

population-based representation were permissible

with respect to special-purpose units “assigned the

performance of functions affecting definable groups

of constituents more than other constituents’ (390

U.S. at 483-484). But once the nature of publie educa-

tion is considered, and the pervasive impact that local

school boards and the decisions they make have on

all citizens is taken into account, it seems clear that

there is no more need to reach that question here

than there was in Avery. Just as with county govern-

ing boards such as that involved in Avery, school

boards across the country have “the authority to make

a substantial number of decisions that affect all citi-

zens”’ (id. at 484). No ascertainable or definable group

within the citizenry generally is in a substantially

different situation with respect to school boards.

Whether parents, taxpayers or simply members of

the community, all citizens have a vital interest in,

and are significantly affected by, the actions of local

school boards. At all events, there was no showing

here that any even arguably rational differences

among citizens in this regard played any role in the

shaping of the Missouri statute here challenged, which

appears to sanction deviations from a population basis

simply in order to disfavor more populous areas,

Within their sphere, school boards exercise govern-

mental powers generally affecting all citizens residing

within the geographic area which they serve. They

should thus be held within the ambit of the equal-popu-

lation principle where, as here, their members are

elected on a district basis.

V. SOUND POLICY CONSIDERATIONS ALSO FAVOR

APPLICATION OF THE EQUAL-POPULATION PRIN-

CIPLE TO ELECTED SCHOOL BOARDS

There are, finally, weighty considerations of public

policy which support application of the equal-popula-

tion principle to elected school boards.” As this Court

said in Avery (390 U.S. at 481): “[I]nstitutions of

local government have always been a major aspect of

our system, and their responsible and responsive oper-

ation is today of increasing importance to the quality

of life of more and more of our citizens,” since there

are “countless matters of local concern [which are]

necessarily left wholly or partly to those who govern

at the local level’’ (ibid.). This is preeminenty true

with respect to public education, which, more than any

other subject, has traditionally been viewed as an

essentially local matter. Moreover, the Court also

11 See generally, in this regard, McKay, Reapportionment and

Local Government, 36 Geo. Wash. L. Rev. 713, 730-731 (1968).

pointed out that, in establishing local governments,

“he States [have] characteristically provide[d] for

representative government—for decisionmaking at the

local level by representatives elected by the people”

(ibid.). Again, this is most particularly so with regard

to school districts, for over 93 percent of the school

poards in this country are composed of representa-

tives elected by the people (see Appendix, infra, pp.

43-44; see supra, pp. 23-24). About 90 percent of these

elected school boards are elected on an at-large, instead

of a district basis (ibid.), but that hardly argues against

holding the equal-population principle applicable to

gchool boards generally so as to require that, where

districts are provided for, as in the instant case, they

must be substantially equal in population.

Indeed, the fact that the overwhelming majority of

school boards are elected indicates a distinct preference

for direct participation by the citizen in the shaping of

educational policies. Yet that participation can truly be

effective, and the body in fact as well as in form rep-

resentative, only when all citizens are given the oppor-

tunity to elect school board members on an equal

basis. Moreover, school districts are generally single-

function governmental units, indicating a considered.

desire that issues regarding education be isolated

from other matters of governmental concern and that

specifie viewpoints on educational questions be ex-

pressed by the electorate. In these circumstances, the

right to vote for school board members should be vig-

orously protected against dilution and undervaluation

through devious districting schemes. Because of the

importance of public education and its pervasive im-

pact in our society, the right to vote for school board

members may well be more important than the right

to select many other representatives.

Education unquestionably plays a critical role in

the lives of all citizens and is a matter of foremost

concern of government and governed alike. While

public education is rarely a purely local responsibility,

local units of government typically exercise broad dis-

cretion and have considerable autonomy in this vital

area. School boards remain the most numerous and

common of the various types of local governmental

bodies (see note 11, supra). Indeed, the 21,782 inde-

pendent school districts in this country constitute

over one-fourth of the total number of local govern-

mental units (ibid.). School boards are important

bodies not only because of their number, but because

of the financial impact they have in our society. Cer-

tainly from the point of view of expenditures, educa-

tion is the “most important function” of local gov-

ernments today no less than it was 15 years ago when

this Court decided Brown v. Board of Education, 347

U.S. 483, 493. Expenditures for public education far

surpass any other single item of governmental activity

at the local level. In 1966-67 about 48.5 percent of the

direct general expenditures of local governments was

for education—some $28.8 billion out of a total of

about $59.5 billion.** Not only, then, is the proportion

28 Dept. of Commerce, Bureau of the Census, Governmental

Finances in 1966-67, p. 23. Of this $28.8 billion, about $1 bil-

lion went for institutions of higher education, with the re-

mainder going to local elementary and secondary schools (ibid.;

see generally zd. at 8-9).

of local government expenditures for education, sig-

nificant—almost one-half of the total—but the figures

involved are, as an absolute matter, quite substantial.

Public education in this country is big business, and

it is getting bigger each year as pupil enrollments

increase and costs of operation continue to rise.” In-

deed, although no figures are readily available, it can

be safely assumed that the operating budgets of some

of our larger school systems exceed the expenditures of

a number of our smaller States.

Perhaps even more significant than these consider-

able and growing financial expenditures for public

education is the qualitative impact that school dis-

tricts have on the lives of all those living in the area

subject to their jurisdiction. Decisions regarding the

operation of school systems often stir more public

interest and controversy than any other subject han-

died at the local governmental level. School boards

frequently operate rather independently of State or

other local control, and exercise powers which have a

substantial impact on all citizens of the community,

whether they have children of school age, pay taxes

that directly support the school system, or simply

live and work there. School boards usually have au-

thority over educational facilities, including decisions

such as when and where to build new school build-

ings, what sort of special equipment to provide, and

the like. They exercise control over all personnel con-

Expenditures for public education have increased by over

$10 billion in the last five years. See Governmental Finances in

1966-67, supra, at 18.

nected with the school system, including teachers, ad-

ministrators, and other employees. In this regan

they deal with thorny and difficult problems such as

teacher salaries, qualifications, assignments, promo

tions, and dismissals. They also prescribe curricula

for use in the public schools, and play a role in deter.

mining what books are to be utilized. And they typi-

cally have the ultimate responsibility in the increas

ingly difficult and often delicate matter of student

discipline.” More generally, most school districts levy

and collect taxes in substantial amounts, and many of

them have the power to condemn property. School

boards also ordinarily fix their budgets, and, of par-

ticular interest to the United States, administer an

increasing number of federal educational assistance

programs.” Most of them also have the authority to

annex areas and to make determinations regarding the

boundaries of school-attendance zones. Similarly, they

make important decisions such as whether special pro-

20 See, e.g., Tinker v. Community School District, No. 21, this

Term, decided February 24, 1969 (slip op., pp. 4-5).

In 1966-67 the total federal expenditures for education

amounted to about $3.9 billion, much of which went directly to

local governmental units under a variety of assistance programs.

See Governmental Finances in 1966-67, supra, at 17, 24. More-

over, these expenditures have been growing rapidly in the past

few years, having tripled in amount in the last three years (id.

at 17). Federal assistance programs include those under the

lementary and Secondary Education Act of 1965, as amended

(20 U.S.C. (Supp. II) 241a et seq., 821 et seg.), the National De

fense Education Act, as amended (20 U.S.C. 421 et seg.), and the

National School Lunch Act (42 U.S.C. 1751 et seg.). Most of the

federal assistance takes the form of various grants-in-aid made to

State and local governments, including, most importantly, local

school boards.

of remedial and adult education will be pro-

yided, whether shared-time programs with private

ghools will be initiated, and whether public school

busses will be provided for children attending private

schools. In areas where racially separate public school

systems previously prevailed, they determine what

eourse to pursue to terminate racial segregation in

the schools and to achieve a truly integrated system

which will provide all students, whatever their race,

with a good education on the basis of complete equal-

ity. Throughout the country they are called upon to

resolve the pressing problems of ensuring that chil-

dren living in our urban ghetto areas are provided

with an educational opportunity equal to that of those

who are better advantaged. In short, the school boards

of this country are responsible for a whole gamut of

important matters, most of which do not admit of

easy resolution and many of which are of vital inter-

est to the citizenry generally, and they are typically

given a variety of substantial powers to earry out

their tasks, the exercise (and sometimes inexercise)

of which has a profound effect on the lives of all

Americans.

School boards have been an important unit of local

government since the emergence of the public school

systems in this country during the last century. As

part of government closest to the people, they con-

stitute instrumentalities in which active citizen par-

ticipation in matters of community interest can be

most effectively realized. Citizens are likely to have

more familiarity with, and thus a greater concern

for the outeome of, problems within the cognizance

2s e

of local units of government, like school districts. And

the demands on school boards are growing. Particn-

larly in our metropolitan areas, with the rapid growth

of urbanization, the influx of persons from rural areag,

and the greater concern with obtaining an adequate

education, the pressures on local governments, includ-

ing school districts, are increasing. The already fast

growth of our population has been outstripped by the

even faster growth of our school-age population. This,

along with the expansion of knowledge during the past

several decades, has accentuated the complexity of the

problems facing those officials responsible for publi¢

education, especially in densely populated urban

areas. Against this background, significant progress in

public education can be achieved only through the en-

lightened operation of our school systems: by viable

governmental entities fairly representative of the

people.

Malapportionment at the local level almost invari-

ably results in governing bodies which are less than

wholly responsive to the more populous areas where

the problems of public education are most difficult.

If decisions on these problems are to be made in the

democratic tradition, they must be made by govern-

ing bodies which are truly representative in character,

are sensitive to the wants and needs of the community,

and are committed to a continuing search for solutions

through innovation and through effort. Of specific

concern to the United States is the fact that educa-

tion is a vital matter for members of various minor-

ity groups in this country which have long been the

vietims of discrimination. With them in mind, the

Voting Rights Act of 1965 (42 U.S.C. (Supp. II)

1913 et seq.) ““was designed by Congress to banish

the blight of racial discrimination in voting, which

has infected the electoral process in parts of our coun-

try for nearly a century’? (South Carolina v. Katzen-

bach, 383 U.S. 301, 308). Yet, the salutary goal of that

legislation will not be fully realized if discrimination

against minority groups can be perpetuated,” albeit

indirectly, through the maintenance of malappor-

tioned local governing bodies.

Effective involvement in government at the local

level may be more meaningful for newly enfranchised

voters than the right to vote for congressmen or State

legislators. The most urgent needs and the most press-

ing interests of these citizens often relate to those every-

day matters and basic programs which are within the

purview of local elected officials, and not infrequently

school board members. And on the local level con-

stituencies are relatively small, so that the voter-

representative relationship tends to be far more di-

rect. Voices of minority group voters and their elected

representatives might be somewhat muted at the na-

tional and State levels by those of the majority. But

members of local governing bodies, such as school

boards, importantly dependent on these voters for

election and reelection, might be expected to be more

responsive to minority groups and more interested

in handling their detailed, day-to-day problems. Re-

liance on State legislatures and the federal govern-

ment to meet their needs is simply insufficient.

2(£ two of the Mississippi cases—Fairley v. Patterson, No.

95, this Term, and Bunton v. Patterson, No. 26, this Term—de-

cided along with Allen v. State Board of Elections, Nos. 3, et al.,

this Term, decided March 3, 1969.

Properly apportioned local governing bodies are eg

sential in this regard.

CONCLUSION

For the reasons stated, the judgment of the Supreme

Court of Missouri should be reversed and the cause

remanded for further proceedings not inconsistent

with an opinion concluding that the equal-population

principle of Reynolds and Avery is applicable to

elected school boards such as the junior college dis-

trict board of trustees involved in the instant case,

Respectfully submitted.

Erwin N. GRrIswo.,

Solicitor General.

JERRIS LEONARD,

Assistant Attorney General.

Francis X. BreytaGH, Jr.,

Assistant to the Solicitor General.

May 1969.

APPENDIX

SCHOOL DISTRICTS

(INCLUDES ONLY THOSE CLASSIFIED AS “INDEPENDENT”

BY BUREAU OF THE CENSUS)

Few

Community

Total Elected Appointed Taxing or junior

power college

districts

Alsbams. . --------------- 119 67 52 BIB hesssviscvecvese

MleGKD. 222 ---nennoncnnee ‘1 1 None eee ae

ANGUEB. 2200--00-2-2-0---2 22 All None All x

Arkansas...--------------- #02 All None All x

California... ------------- 1,239 1,237 2 All x

CREED, occccctijencosors 191 Most Few All x

Connecticut ....----------- 19 All None a a

Eee i) Most Few Ot

District of Columbia - --.. 1 All None TIGBO Bi menccinccdeice

NDR. cpdeceocccnsoned 67 All None All x

GIGS 2c concocccecceccee 1% Some Some Most x

eee |) |, ee a: See a Aaa ae ere

a cccbennnsvbaccbes 120 All None All x

DIRE. cc ncceccccoccennses 1,350 Most Few All x

EE canccocecesncccoge 309 Most ‘Few All x

RE ceca 478 All None All x

NN cadhinectinbinseoee 360 358 2 All x

istncbasecosnnss 200 All None All x

etic racpinkincbin 67 All None All x

SR, cc scvcccoiccoscccces 165 Some Some All x

Sees ph, Cae: a Oe eer ae

Massachusetts. ......------ 44 Some 8ome All x

Michigan.......----------- $5 All None All x

| ea 1,282 All None Be Neevoberntewnns

Mississippi. .......-------- 161 Some Some All x

870 All None All x

eee 713 Most Few All x

0 2,322 All None All x

a dintitonantondnmiines 17 All None AB Picsbsbicewsst

New Hampsbire.......-.-- 1181 Most Few | RE SS

EE aiacascreorns 1 §22 All None All x

Pee 90 All None All x

EES 1916 Most Few All x

North Carolina............ |) {oe Ele ase x

North Dakota............. 538 All None x

Pe initintindedwieranbnaot 1710 All None x

ees 960 All None x

I Aare aaa 38 All None x

Peonsylvania.............- 749 747 2 x

SCHOOL DISTRICTS (INCLUDES ONLY THOSE CLASSIFIED 4g

“INDEPENDENT” BY BUREAU OF THE CENSUS)—Continued

ae eee eel Mh:

power

Washington...............- 246 All None All x

West Virginia.............. 55 All None a3).

TNE chnicocoosocipese 519 Most Few Some }......

IE tell atee 177 All None AB conse

a 21,782 20, 246 91,536 (*) uy

! All others dependent.

2 Handled by State government.

3 Bome governed by ez officio members.

* All dependent; all but 1 appointed.

5 All dependent; some elected.

* All others dependent; all elected.

7 All others dependent; some elected.

* All dependent; all appointed.

* Figures derived somewhat arbitrarily by attributing fractions to terms used as follows: Most.

Some—\s; Few—\.

® No approximation possible.

Source: Department of Commerce, Bureau of the Census, 1967 Census of Governments, Vol, |,

, Governmental Organization,” “Individual-Btate Descriptions,” pp. 297 et seq.

* * * * *

As the above figures show, approximately 93 per-

cent of all members of the governing boards of in-

dependent school districts in this country are elected,

and only 7 percent are appointed. Even some of the

members of “dependent” school boards are elected,

either directly or by virtue of their ex officio capacity.

A sampling of State statutes in States having large

numbers of elected school boards showed that about 90

percent of these are elected at large, and only 10

percent on a district basis. States sampled were: Cali-

fornia, Illinois, Kansas, Minnesota, Missouri, Mon-

tana, Nebraska, New Jersey, North Dakota, Ohio,

Oklahoma, Pennsylvania, South Dakota, Texas, Wash-

ington, Wisconsin, and Wyoming.

" S. GOVERNMENT PRINTING OFFICE: 1969

THE Jl

| wef?

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.