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

Proposed legislative restriction on the power of the inferior federal courts to order busing rem edies in
   school desegregation litigation cannot be justified as an exercise of congressional power to enforce
   the Fourteenth A m endm ent, if such a restriction would prevent a court from fully rem edying a
   constitutional violation.

Proposed legislation can be justified as an exercise of congressional power under A rticle III, § I of the
   Constitution, which gives Congress very broad power to control the jurisdiction o f the inferior
   federal courts. T he bill does not usurp the judicial function by depriving the lower courts of power
   to hear desegregation cases and to im pose rem edies w hich do not involve busing, nor does it
   instruct the lower courts how to decide issues of fact in pending cases, or require reversal of any
   outstanding court order.

The b ill’s provision prohibiting the Departm ent of Justice from using appropriated funds to bring or
   m aintain an action to require busing is constitutional despite the lim itations that it would im pose on
  the Executive’s discretion, since it does not preclude the Departm ent from fulfilling its statutory
  obligation to enforce the law through seeking other effective rem edies or objecting to inadequate
  desegregation plans.

Both the lim itation on courts and on the D epartm ent of Justice should be upheld if challenged under
  the equal protection com ponent of the Fifth A m endm ent's Due Process Clause, since neither
   lim itation creates a racial classification nor evidences a discrim inatory purpose

                                                                                                     May 6, 1982

T   he   C   h a ir m a n o f t h e    Com    m it t e e o n t h e        J u d ic ia r y
             U n it e d S t a t e s H o u s e   of    R   e p r e s e n t a t iv e s



D e a r M r . C h a i r m a n : This responds to your request concerning those portions
of S. 951, the Senate-passed version o f the D epartment of Justice appropriation
authorization bill for fiscal year 1982, which relate to the mandatory transporta­
tion of school children to schools other than those closest to their homes
(“busing”).* One of these provisions relates to the remedial powers of the inferior
courts and the other to the authority of the Departm ent of Justice. This letter
discusses the effect of these provisions as well as the policy and constitutional
implications of the provisions as construed. The funding provisions of S. 951
will be addressed in a separate letter by the Assistant Attorney General of the
Office of Legislative Affairs.


  ♦ N o t e - The relevant portions o f S 951, 97th C ong , 2d S ess., are reprinted at 128 Cong R ec S ) 3 3 6 (daily ed.
M ar 2 , 1982) Ed


                                                             i
   It is im portant to note at the outset that S. 951 does not withdraw jurisdiction
from the Suprem e C ourt or limit the jurisdiction of the federal courts to decide a
class o f cases. T he provisions o f the bill and its legislative history make clear that
the effect of these provisions relate only to one aspect of the remedial power of the
inferior federal courts— not unlike the N orris-L aG uardia Act, enacted in 1932.
N or do the provisions limit the pow er of state courts or school officials to reassign
students or require transportation to remedy unconstitutional segregation. Care­
ful exam ination o f these provisions indicates that they are constitutional.

                           I. B using Provisions of S. 951

   The first provision, § 2 of the bill, entitled the Neighborhood School Act of
 1982, recites five congressional findings to the effect that busing is an inade­
quate, expensive, energy-inefficient, and undesirable remedy. It then states
(§ 2(d)) that, pursuant to Congress’ power under Article III, § 1 and § 5 of the
Fourteenth A m endm ent, “no co u rt of the United States may order or issue any
writ directly or indirectly ordering any student to be assigned or to be transported
to a public school other than that which is closest to the student’s residence
unless” such assignm ent or transportation is voluntary or “reasonable.” The bill
declares that such assignment o r transportation is not reasonable if

        (i) there are reasonable alternatives available which involve less
        tim e in travel, distance, danger, or inconvenience;

        (ii) such assignm ent or transportation requires a student to cross a
        school district having the sam e grade level as that of the student;

        (iii) such transportation plan or order or part thereof is likely to
        result in a greater degree o f racial im balance in the public school
        system than was in existence on the date of the order for such
        assignm ent o r transportation plan or is likely to have a net harmful
        effect on the quality of education in the public school district;

        (iv) the total actual daily tim e consumed in travel by schoolbus for
        any student exceeds thirty m inutes unless such transportation is to
        and from a public school closest to the student’s residence with a
        grade level identical to that of the student; or

        (v) the total actual round trip distance traveled by schoolbus for
        any student exceeds 10 m iles unless the actual round trip distance
        traveled by schoolbus is to and from the public school closest to
        the student’s residence w ith a grade level identical to that of the
        student.

Section 2(f) o f the bill adds a new subparagraph to § 407(a) of Title IV o f the
Civil R ights A ct o f 1964 , 42 U .S .C . § 2000c-6(a), authorizing suits by the
Attorney G eneral to enforce rights guaranteed by the bill if he determines that a
student has been required to attend o r be transported to a school in violation of the

                                           2
bill and is otherwise unable to maintain appropriate legal proceedings to obtain
relief. The bill is made “retroactive” in that its terms would apply to busing
ordered by federal courts even if such order were entered prior to its effective
date. Section 16 of the bill supplements these provisions by providing that
“[n]otwithstanding any provision of this Act, the Department of Justice shall not
be prevented from participating in any proceedings to remove or reduce the
requirement of busing in existing court decrees or judgm ents.”
   The second provision, § 3( 1)(D), limits the power of the Department of Justice
to bring actions in which the Department would advocate busing as a remedy:

           N o part of any sum authorized to be appropriated by this Act
        shall be used by the Department of Justice to bring or maintain
        any sort of action to require directly or indirectly the transporta­
        tion of any student to a school other than the school which is
        nearest to the student’s hom e, except for a student requiring
        special education as a result o f being mentally or physically
        handicapped.

                             II. General Comments

    There appear to be am biguities in the Neighborhood School A ct’s provisions
for suits to be brought by the Attorney General challenging existing decrees. For
example, it is unclear what, if any, obligations are placed on the Attorney General
with regard to court decrees that offend § 2. Since the bill does not purport to
prevent any governmental entities other than federal courts from requiring the
transportation of students, the Attorney G eneral’s review of a com plaint must
include the inquiry whether the transportation is the result of federal court action.
It is difficult to determ ine the party against whom the action is to be brought. The
assignment violates the Neighborhood School Act only if it is required by court
order. Does the Attorney General sue the court? If so, then what relief is
appropriate? Does the bill permit an action against a school board even though its
actions are not the subject of the bill’s prohibition? If a school board is the
defendant, then what relief is appropriate? Does the Attorney General ask that the
school board be enjoined from complying with the court order? Does he ask for a
declaratory judgm ent of the board’s obligations under the order? If the latter is the
case and the board wishes to continue its present assignment patterns, what will
have been accomplished by the lawsuit? These questions illustrate the problems
incident to the provisions that allow for collateral attack on existing decrees.
    Serious concern arises also because of the limitation on the Attorney G eneral’s
discretion contained in § 3(1 )(D). This Administration has repeatedly stated its
objection to the use of busing to remedy unlawful segregation in public schools.
See Testimony of W m . Bradford Reynolds, Assistant Attorney G eneral, Civil
Rights D ivision, Before the Subcomm. on Separation of Powers of the Senate
Comm, on the Judiciary, Desegregation o f Public Schools (Oct. 16, 1981). The
express limitation on the D epartm ent’s authority is unnecessary and may inhibit

                                          3
the ability to present and advocate remedies which may be less intrusive and
burdensom e than those being urged on a court by other litigants. Moreover,
because the limitation is imposed only in the D epartm ent’s one-year authoriza­
tion, there is no force to the argum ent that a statutory provision is necessary to
ensure that successive Administrations will also carry out congressional intent.
Finally, to the extent that Congress does intend to effect a long-term substantive
change in the law, the proper vehicle would seem to be permanent substantive
legislation, not an authorization bill which m ust be reviewed annually by Con­
gress and which becom es more difficult to enact and thus less efficient for its
necessary purposes when it is encum bered by extraneous matters.

                              III. Constitutionality

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

   The N eighborhood School Act restricts the power of inferior federal courts to
issue rem edial busing decrees w here the transportation requirement would ex­
ceed specified limits of reasonableness. That it does not purport to limit the power
of state courts or school boards is amply demonstrated by its text and by
statem ents of its supporters. Senator Hatch, in a colloquy with Senator Johnston,
stated that “this bill does not, however, restrict in any way the authority of State
courts to enforce the Constitution as they wish . . . .” 127 Cong. Rec. S6648
(daily ed. June 22, 1981). On the day that the bill passed the Senate, Senator
Johnston echoed these remarks:

        If a school board wants to bus children all over its parish or all
        over its county, it is not prohibited from doing so by this amend­
        m ent. N or indeed would a State court if it undertook to order that
        busing. The legislation deals only with the power of the Federal
        courts . . . .

128 C ong. Rec. S1324 (daily ed. March 2, 1982).
   The im pact o f the Neighborhood School Act on the federal courts is also
lim ited. It w ithdraw s, in specified circum stances, a single remedy from the
inferior federal courts. The substantial weight of the text and legislative history
supports the proposition that the bill limits the remedial power only of the inferior
federal courts, not the Supreme "Court. There is strong textual support for this
conclusion, because the bill recites that it is enacted pursuant to congressional
power under A rticle III, § 1. Section 1 of Article III provides authority for
lim iting the jurisdiction and the powers of the inferior federal courts, not the
Suprem e Court. The source of congressional authority relative to the jurisdiction
of the Suprem e C ourt is the Exceptions Clause, Art. Ill, § 2, cl. 2. The
conspicuous and apparently intentional omission of that clause as a source of
congressional authority to enact this measure strongly indicates that no restriction
of the Suprem e C ourt appellate jurisdiction was intended.

                                          4
   Moreover, there do not appear to be any direct statements in the legislative
history to the effect that any restriction on the Supreme C ourt’s jurisdiction was
intended. To the contrary, there is an explicit colloquy between Senators Hatch
and Johnston indicating that no restriction on Supreme Court jurisdiction was
intended. In response to a question posed by Senator M athias to Senator
Johnston, Senator Hatch stated:

           There is little controversy, in my opinion . . . that the constitu­
        tional power to establish and dismantle inferior Federal courts has
        given Congress complete authority over their jurisdiction. This
        has been repeatedly recognized by the Supreme Court . . . .

           This amendment would be only a slight modification of lower
        Federal court jurisdiction. These inferior Federal courts would
        no longer have the authority to use one remedy among many for a
        finding of a constitutional violation.


           I would hasten to add that this bill does not, however; restrict in
       any way . . . the power c f the Supreme Court to review State court
       p r o c e e d in g s a n d in su re f u l l e n fo rc e m e n t o f co n stitu tio n a l
       guarantees.

          In short, this is a very, very narrow amendment. It only
        withdraws a single remedy which Congress finds inappropriate
       fro m the lower Federal courts.
                    :f:                                          ^


          M R. JOHNSTON. Mr. President, I thank the distinguished
        Senator from Utah for his exegesis on the legality, the power of
        Congress under article III to restrict jurisdiction.

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

B. Legal Status o f Transportation Remedies

   In Brown v. Board o f Education, 349 U .S. 294, 300 (1955) (II), the Supreme
Court held that federal courts must be guided by equitable principles in the design
of judicial remedies for unlawful racial segregation in public school systems.
Under those principles, as the Court has more recently explained, “the rem edy is
necessarily designed, as all remedies are, to restore the victims of discriminatory
conduct to the position they would have occupied in the absence of such
conduct.” M illiken v. Bradley (Bradley 1), 418 U .S. 717, 746 (1974) (I). The
Court has indicated that the principle that justifies judicial discretion to impose
transportation remedies also implies a limitation on that discretion.
   The judicial power to impose such remedies “may be exercised only on the
basis of a constitutional violation,” Swann v. Charlotte-M ecklenburg, 402 U.S.
1, 16 (1971), and “a federal court is required to tailor ‘the scope of the rem edy’ ”

                                                  5
which included the transportation of students to schools other than the ones
which they had form erly attended, “to fit ‘the nature and the extent of the
constitutional vio latio n ,’ ” Dayton v. Brinkm an, 433 U .S. 406, 420 (1977),
quoting Bradley I, at 744. In other words, reassignment of students and con­
com itant transportation of students to different schools is appropriate only when
it is “ indeed . . . remedial, ” M illiken v. Bradley (Bradley II), 433 U .S. 2 6 7 ,2 8 0
(1977) (em phasis in original), that is, when it is aimed at making available to the
victim s of unlawful segregation a school system that is free of the taint of such
segregation.
    The Suprem e C ourt has stated that circum stances might conceivably exist in
w hich the im position of a desegregation remedy which included the transporta­
tion of students to schools other than the ones which they had formerly attended
would be unavoidable in order to vindicate constitutional rights. If school
authorities have segregated public school students by race, they shoulder a
constitutional obligation “ to elim inate from the public schools all vestiges of
state-im posed segregation,” Swann, 402 U .S. at 15. The Court has said that if
this duty cannot be fulfilled without the mandatory reassignment of students to
different schools, with the concom itant requirement of student transportation,
this rem edy cannot be statutorily elim inated. In North Carolina v. Swann, 402
U .S . 43 (1971), the Court overturned a North C arolina statute that proscribed the
assignm ent o f students to any school on the basis of race, “ or for the purpose of
creating a racial balance or ratio in the schools,” and prohibited “ involuntary”
busing in violation of the statutory proscription. The Chief Justice, writing for a
unanim ous C ourt, concluded:
        [I]f a state-im posed limitation on a school authority’s discretion
        operates to inhibit or obstruct the operation of a unitary school
        system or im pede the disestablishing o f a dual school system, it
        m ust fall; state policy m ust give way when it operates to hinder
        vindication o f federal constitutional guarantees.
                   *           *            *            *           sf:


           We likewise conclude that an absolute prohibition against
        transportation of students assigned on the basis of race, “or for the
        purpose of creating a balance or ratio,” will similarly hamper the
        ability o f local authorities to effectively remedy constitutional
        violations. As noted in Swann, supra, at 29, bus transportation
        has long been an integral part of all public educational systems,
        and it is unlikely that a truly effective remedy could be devised
        w ithout continued reliance upon it.
402 U .S . at 45—46.
   A lthough the C ourt has indicated that some student transportation might be a
necessary incident to a desegregation decree, it has never stated with particularity
what those cases might be, nor has it identified the limitations on busing orders in
cases where transportation is constitutionally required. In Swann v. Charlotte-
M e c k le n b u rg , su p ra , fo r exam ple, the C o u rt declined to provide “ rigid

                                            6
guidelines” governing the appropriateness of busing remedies. It stated only that
busing was to be limited by factors of time and distance which would “ either risk
the health of the children or significantly impinge on the educational process.”
402 U.S. at 30-31. Limits on tim e and distance would vary with many factors,
“ but probably with none more than the age of the students.” Id. at 31.

C. Congressional Power Under § 5 o f the Fourteenth Amendment
    In light of the Suprem e C ourt’s conclusion that student transportation m ight in
some circumstances be a necessary feature of a remedial desegregation decree, it
is necessary to consider whether the limitation on the power of the inferior federal
courts under the Neighborhood School Act would be justified as an exercise of
congressional authority under § 5 of the Fourteenth Amendment. Section D,
infra, focuses on Congress’ power under Article III, § 1, which is broader in this
context than § 5.
    Section 5 provides that Congress “ shall have power to enforce, by appropriate
legislation, the provisions of” the Fourteenth Amendment, including the Equal
Protection Clause, which has been held to guarantee all students a right to be free
of intentional racial discrim ination or segregation in schooling. Brown v. Board
c f Education, 347 U .S. 483(1954). The question is whether congressional power
to enforce that right by appropriate legislation includes authority to limit the
power of the lower federal courts to award transportation remedies generally and
specifically in those cases in which some transportation is necessary fully to
vindicate constitutional rights.
    The cases o f K atzenbach v. M organ, 384 U .S . 641 (1966); O regon v.
Mitchell, 400 U.S. 112 (1970); City c f Rome v. United States, 446 U .S. 156
(1980); and Fullilove v. Klutznick, 448 U.S. 448 (1980) (plurality opinion),
firmly establish that the § 5 power is a broad one. Congress may enact statutes to
prevent or to rem edy situations which, on the basis of legislative facts, Congress
determines to be violative of the Constitution. At the same time, these cases
rather firmly establish that Congress is without power under § 5 to revise the
C ourt’s constitutional judgm ents if the effect of such revision is to “ restrict,
abrogate, or dilute” Fourteenth Amendment guarantees as recognized by the
Supreme Court.
    The limitation on busing rem edies contained in the Neighborhood School Act
would be authorized under § 5 o f the Fourteenth A mendment to the extent that it
does not prevent the inferior federal courts from adequately vindicating constitu­
tional rights. The grant of power under § 5 to “ enforce” the Fourteenth Am end­
ment carries with it subordinate authority to determine specific methods by
which that am endm ent is to be enforced. As an incident of its enforcement
authority, therefore, Congress may instruct the lower federal courts not to order
mandatory busing in excess of the § 2(d) limits, so long as the court retains
adequate legal or equitable powers to remedy whatever constitutional violation
may be found to exist in a given case.
    Moreover, federal and state courts would probably pay considerable deference
to the congressional factfinding upon which the bill is ultimately based in

                                          7
determ ining the scope of constitutional requirements in this area. The Court has
stated that, so long as it can “ perceive a basis” for the congressional findings,
K atzenbach v. M organ, 384 U .S . at 653, it will uphold a legislative determina­
 tion that a situation exists which either directly violates the Constitution or
 w hich, unless corrected, will lead to a constitutional violation. Similar deference
 would be appropriate for findings under this bill, notwithstanding the somewhat
 lim ited hearings which were held and the absence of printed reports. It does not
appear that any particularized research was presented to the Senate which might
have supported or undermined the specific limitations on federal court decrees
contained in § 2(d) o f S. 951. It is likely, however, that the time and distance
lim itations contained in § 2(d) o f the bill would serve as legitimate benchmarks
for federal and state courts in the future in devising appropriate decrees. To this
extent, the exercise of congressional power under § 5 would be fully proper and
effective.
    N or does it appear that the Neighborhood School Act would be interpreted to
 “ d ilu te” Fourteenth Amendment rights merely because it denies a certain form
of relief in the inferior federal courts or includes certain retroactivity provisions
in §§ 2 (0 and (g). Congress cannot, under § 5, prohibit a federal district court
from granting a litigant all the relief that the Fourteenth Amendment requires.
M oreover, the state courts would remain open to persons claiming unconstitu­
tional segregation in education after this bill becomes law, and would be em ­
powered— indeed, required—to provide constitutionally adequate relief.
    U nder § 5 C ongress cannot im pose mandatory restrictions on federal courts in
a given case where the restriction would prevent them from fully remedying the
constitutional violation. Congressional power to enforce the Fourteenth Amend­
m ent is not a pow er to determine the limits of constitutional rights. Although it
includes the power to limit the equitable discretion of the lower federal courts to
im pose rem edial measures which are not necessary to correct the constitutional
violation, the courts must retain remedial authority sufficient to correct the
violation. And although Congress can express its view through factfinding, but
subject to the limitations set forth in § 2(d) of the bill, that busing is an ineffective
rem edial tool and that extensive busing is not necessary to remedy a constitu­
tional violation, it is ultimately the responsibility of the courts to determine, after
giving due consideration to the congressional findings contained in this bill,
w hether in a given case an effective remedy requires the use of mandatory busing
in excess of the limitations set forth in § 2(d) o f the bill.
    In sum , C ongress, pursuant to § 5, can: (1) limit the authority of federal
district courts to require student transportation where it is not required by the
C onstitution; and (2) adopt guidelines, based on legislative factfinding, as to
w hen busing is effective to rem edy the violation, which guidelines will tend to
receive substantial deference from the courts. Section 5 does not, however,
authorize C ongress to preclude the inferior federal courts from ordering man­
datory busing w hen, in the judgm ent of the courts, such busing is necessary to
rem edy a constitutional violation. This authority must be found, if at all, in the

                                            8
power of Congress under Article 111, § 1 to restrict the jurisdiction of the lower
federal courts.

D. Congressional Power Under Article III, § I

    Congress’ authority to limit the equitable powers of the inferior federal courts
 has been repeatedly recognized by the Supreme Court. Article 111, § 1 of the
 Constitution provides that “ [t]he judicial Power of the United States, shall be
 vested in one suprem e Court, and in such inferior Courts as the Congress may
 from time to tim e ordain and establish.” See also U .S. Const. Art. 1, § 8, cl. 9
 (giving Congress power to “ constitute Tribunals inferior to the supreme C ourt” ).
 It seems a necessary inference from the express decision of the Framers that the
creation of inferior courts was to rest in the discretion of Congress that, once
created, the scope of the court’s jurisdiction was also discretionary. The view
 that, generally speaking, Congress has very broad control over the inferior
 federal court jurisdiction was accepted by the Supreme Court in Cary v. Curtis,
44 U.S. (3 How.) 236 (1845), and Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850).
That view rem ains firmly established today.
    Congress’ power over jurisdiction has been further recognized, most notably
 in cases under the N orris-LaG uardia Act, to include substantial power to limit
the remedies available in the inferior federal courts. In L a u f\. E .G . Shinner &
C o., 303 U.S. 323, 330 (1938), the C ourt upheld provisions of the N orris-
 LaGuardia Act which imposed restrictions on federal court jurisdiction to issue
restraining orders or injunctions in cases growing out of labor disputes. In two
cases under the Emergency Price Control Act of 1942, the Supreme Court
recognized the power of Congress to withdraw certain cases from the jurisdiction
of the inferior federal courts and to prohibit any court from issuing temporary
stays or injunctions. See Lockerty v. Phillips, 319 U .S. 182 (1943); Yakus v.
 United States, 321 U .S. 414 (1944).
    The provisions of the Neighborhood School Act appear to be firmly grounded
in Congress’ Article III, § 1 power, as interpreted in Lauf, Lockerty, and Yakus, to
control the inferior federal court jurisdiction. The bill does not represent an
attempt by Congress to use its power to limit jurisdiction as a disguise for
usurping the exercise of judicial power. The bill does not instruct the inferior
federal courts how to decide issues o f fact in pending cases. See United States v.
Klein, 80 U .S. (13 Wall.) 128 (1872).
    N or does the bill usurp the judicial function by depriving the inferior federal
courts of their power to issue any remedy at all. The bill does not withdraw the
authority of inferior federal courts to hear desegregation cases or to issue busing
decrees, so long as they comport with the limitations in § 2(d) of S. 951. This
limited effect on the court’s remedial power does not convert the judicial power—
to hear and decide particular cases and to grant relief— into the essentially
legislative function of deciding cases without any power to issue relief affecting
individual legal rights or obligations in specific cases. Whatever implicit lim ita­

                                         9
 tions on Congress’ power to control jurisdiction might be contained in the
 principle of separation of powers, they are not exceeded by this bill, which does
 not withdraw all effective remedial power from the inferior federal courts.
    N either the text of the bill nor the legislative history appears to support the
conclusion that the bill requires an automatic reversal of any outstanding court
order that im posed a busing rem edy beyond the limits specified in the bill. Such
an attem pt to exert direct control over a court order would raise constitutional
problem s associated with legislative revision of judgm ents. E .g., Hayburn's
Case, 2 U .S. (2 D ali.) 409 (1792) (on petition for mandamus). The “retroactive”
effect is felt instead through a change in the substantive law, in this case the law of
rem edies, to be applied by courts in determ ining whether to impose or to revise a
busing remedy, coupled with the grant of authority to the Attorney General to
seek relief on behalf o f a student transported in violation of the Act. Upon the
Attorney G eneral’s application, the court would itself determine whether the
busing rem edy was consistent w ith the Act. T he bill, therefore, does no more
than require the court to apply the law as it would then exist at the time of its
decision in a “ pending” case. S ee The Schooner Peggy, 5 U .S. (1 Cranch) 103
(1801).
    The busing rem edy is “ pending” and not final to the extent that the court has
retained jurisdiction over the case or the order is otherwise subject to modifica­
tion by the court in the exercise of its equity jurisdiction. See United States v.
S w ift & C o., 2 8 6 U .S . 106, 114—15(1932). Prior to or in the absence of relief by
the court from a previously imposed busing order, the parties before the court
would be required to continue to perform pursuant to the court’s order. Cf.
Pennsylvania v. W heeling & Belm ont Bridge C o ., 5 9 U .S .(1 8 How.) 421 (1856).

E. C onstitutionality c f § 3(1 )(D)

   Section 3(1 )(D) o f the bill prohibits the Department of Justice from using any
appropriated funds to bring or maintain any action to require, directly or
indirectly, virtually any busing o f school children. The D epartm ent’s authority to
institute litigation under Title IV of the Civil Rights Act of 1964, 42 U .S .C .
§ 2000c-6, against segregated school systems would not be diminished. Nor
would the federal courts, under this section, be limited in their power to remedy
constitutional violations. The effect of § 3(1)(D) is only to prohibit the Depart­
m ent in the litigation in which it is involved from seeking, directly or indirectly, a
busing remedy. If the language and legislative history of the bill, as finally
enacted, support this interpretation, it would appear that § 3(1)(D) would be
upheld despite the limitations that it would im pose on the discretion currently
possessed by the Executive Branch.
   T he lim itation would restrict the litigating authority presently conferred upon
the D epartm ent by Title IV to seek all necessary relief to vindicate the constitu­
tional rights at stake. At least in cases that do not involve the use of federal funds
by segregated school systems, the Executive’s authority may be restricted to this
lim ited extent. Because the restriction does not entirely preclude enforcement

                                          10
actions by the United States, § 3 (l)(D ) does not impermissibly limit the E x­
ecutive’s “ inherent” authority to remedy constitutional violations, to the extent
recognized in United States v. City c f Philadelphia, 644 F.2d 187 (3d Cir. 1980),
or N ew York Tim es Co. v. U nited States, 403 U .S. 713, 741—47 (1971)
(M arshall, J., concurring). And because the restriction applies only to one
remedy and does not preclude the Department from seeking other effective
remedies or prevent the Executive from objecting to inadequate desegregation
plans, § 3( 1)(D) does not exceed the congressional power over the enforcem ent
authority that is granted.
   Where federal funds are provided, § 3( I )(D) would be constitutional if read to
preserve the governm ent’s ability to fulfill its Fifth Amendment obligations by
initiating antidiscrimination suits, restricting only, and in a very limited fashion,
the D epartm ent’s participation, by seeking a busing order, in the remedial phase
of such suits. The Department would be authorized to seek alternative remedies
and to com m ent on the sufficiency of these alternatives. If the alternative
remedies to busing are inadequate in a particular case to vindicate the rights at
stake, the court would retain authority, subject, o f course, to the Neighborhood
School Act provisions, to order a transportation remedy. The Department could
be asked to com m ent on the sufficiency of this remedy if ordered by the court.
   Moreover, § 3(1 )(D) would not appear to disable the Department of Justice
from seeking a court order foreclosing the receipt of federal funding by schools in
unconstitutionally segregated school systems in those cases, if any, where the
court was prevented by the limits contained in the Neighborhood School Act
from issuing an adequate remedy and the administrative agency was precluded
from terminating federal funds. See Brown v, Califano, 627 F.2d 1221 (D.C. Cir.
 1980).

F. Due Process Clause

   Finally, both the limitation on the courts under the Neighborhood School Act
and on the D epartment of Justice under § 3( 1)(D) should be upheld if challenged
under the equal protection component of the Fifth Amendm ent’s Due Process
Clause, see Bolling v. Sharpe, 347 U .S. 497 (1954), as a deprivation of a judicial
remedy from a racially identifiable group. These provisions neither create a racial
classification nor evidence a discriminatory purpose. Absent either of these
constitutional flaws, the provisions will be upheld if they are rationally related to
a legitimate government purpose. See Harris v. M cRae, 448 U.S. 297 (1980).
   As the law has developed, the courts will review statutory classifications
according to a “ strict scrutiny” standard either if they create a racial or other
“ suspect” classification, e .g .. H unter v. Erickson, 393 U.S. 385 (1969), or if
they reflect an invidious discriminatory purpose. E .g ., Village o f Arlington
Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977);
Washington v. D avis, 426 U.S. 229 (1976); cf. City o f M obile v. Bolden, 446
U.S. 55 (1980) (plurality opinion). Satisfaction of the strict scrutiny standard
requires a classification that is narrowly tailored to achieve a compelling govem-

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m ental interest. N either basis for invoicing strict scrutiny appears to be applicable
here.
    First, these provisions, unlike the provision found unconstitutional in H unter
v. Erickson, supra, do not contain a racial classification. Mandatory busing for
the purpose of achieving racial balance is only one of the circumstances in which
student transportation is placed o ff limits to Justice Department suits or district
court orders. The proposals prohibit Justice D epartment suits or court orders for
the transportation of students specified distances or away from the schools nearest
their hom es for any reason. Moreover, a racial classification would not result even
if these provisions limited advocacy or ordering of mandatory busing only to
achieve racial integration. The issue o f what sorts of remedies the Justice
D epartm ent should advocate or the federal district courts should order simply
does not split the citizenry into discrete racial subgroups. Cf. Personnel Adm in­
istrator v. Feeney, 442 U.S. 256 (1979).
    S econd, there appears to be no evidence of purposeful discrimination. W hat­
ever m ight be the arguable impact on racial m inorities, the legislative history to
date contains no suggestion o f an invidious discriminatory purpose. To the
contrary, the sponsors and supporters of these measures endorsed the decision in
Brown v. B oard o f Education, 347 U.S. 483 (1954), and repeatedly stated their
abhorrence of de ju re segregation in schooling. The proponents rest their support
o f this legislation on the conclusion that busing has been destructive not only of
quality education for all students but also of the goal of desegregation. Even the
opponents of the bill did not suggest that any invidious purpose was present.
    Accordingly, the bill will not be subject to review under the strict scrutiny
standard. Instead, the bill will be reviewed, and upheld, under the principles of
equal protection, if it is rationally related to a legitimate governmental purpose.
This test is a highly deferential one. It is reasonably clear that the defects in
busing noted by the proponents o f the bill and discussed above would suffice to
satisfy the m inim um rationality standard. Moreover, the proponents of these
provisions advanced other rationales to support the measure, including that
m andatory busing is an excessive burden on the taxpayer; that it wastes scarce
petroleum reserves; and that education is a local matter that should be adm in­
istered on a local level. These reasons appear to be legitimate governmental
purposes, and the busing restrictions appear to be rationally related to these
purposes.
    It should be noted in closing that these conclusions are predicated in substan­
tial part on the legislative history of this bill to date. Subsequent history in the
H ouse or thereafter could well affect these views.

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




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