Plessy v. Ferguson.

May 18, 1896

*538This was a petition for writs of prohibition and certiorari originally filed in the supreme court of the state by Plessy, the plaintiff in error, against the Hon. John H. Ferguson, judge of the criminal district court for the parish of Orleans, and setting forth, in substance, the following facts:

That petitioner was a citizen of the United States and a resident of the state of Louisiana, of mixed descent, in the proportion of seven-eighths Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege, and immunity secured to the citizens of the United States of the white race by its constitution and laws; that on June 7, 1892, he engaged and paid for a first-class passage on the East Louisiana Railway, from New Orleans to Covington, in the same state, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race, but, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach, and occupy another seat, in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach, and hurried off to, and imprisoned in, the parish jail of*539 New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the general assembly of the state, approved July 10, 1890, in such case made and provided.

The petitioner was subsequently brought before the recorder of the city for preliminary examination, and committed for trial to the criminal district court for the parish of Orleans, where an information was filed against him in the matter above set forth, for a violation of the above act, which act the petitioner affirmed to be null and void, because in conflict with the constitution of the United States; that petitioner interposed a plea to such information, based upon the unconstitutionality of the act of the general assembly, to which the district attorney, on behalf of the state, filed a demurrer; that, upon issue being joined upon such demurrer and plea, the court sustained the demurrer, overruled the plea, and ordered petitioner to plead over to the facts set forth in the information, and that, unless the judge of the said court be enjoined by a writ of prohibition from further proceeding in such case, the court will proceed to fine and sentence petitioner to imprisonment, and thus deprive him of his constitutional rights set forth in his said plea, notwithstanding the unconstitutionality of the act under which he was being prosecuted; that no appeal lay from such sentence, and petitioner was without relief or remedy except by writs of prohibition and certiorari. Copies of the information and other proceedings in the criminal district court were annexed to the petition as an exhibit.

Upon the filing of this petition, an order was issued upon the respondent to show cause why a writ of prohibition should not issue, and be made perpetual, and a further order that the record of the proceedings had in the criminal cause be certified and transmitted to the supreme court.

To this order the respondent made answer, transmitting a certified copy of the proceedings, asserting the constitutionality of the law, and averring that, instead of pleading or admitting that he belonged to the colored race, the said Plessy declined and refused, either by pleading or otherwise, to ad*540mit that he was in any sense or in any proportion a colored man.

The case coming on for hearing before the supreme court, that court was of opinion that the law under which the prosecution was had was constitutional and denied the relief prayed for by the petitioner (Ex parte Plessy, 45 La. Ann. 80, 11 South. 948); whereupon petitioner prayed for a writ of error from this court, which was allowed by the chief justice of the supreme court of Louisiana.

Mr. Justice Harlan dissenting.

A. W. Tourgee and S. F. Phillips, for plaintiff in error.

Alex. Porter Morse, for defendant in error.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

This case turns upon the constitutionality of an act of the general assembly of the state of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No. 111, p. 152.

The first section of the statute enacts 'that all railway companies carrying passengers in their coaches in this state, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: provided, that this section shall not be construed to apply to street railroads. No person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them, on account of the race they belong to.'

By the second section it was enacted 'that the officers of such passenger trains shall have power and are hereby required*541 to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this state.'

The third section provides penalties for the refusal or neglect of the officers, directors, conductors, and employees of railway companies to comply with the act, with a proviso that 'nothing in this act shall be construed as applying to nurses attending children of the other race.' The fourth section is immaterial.

The information filed in the criminal district court charged, in substance, that Plessy, being a passenger between two stations within the state of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred.

The petition for the writ of prohibition averred that petitioner was seven-eights Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him; and that he was entitled to every right, privilege, and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate*542 said coach, and take a seat in another, assigned to persons of the colored race, and, having refused to comply with such demand, he was forcibly ejected, with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.

The constitutionality of this act is attacked upon the ground that it conflicts both with the thirteenth amendment of the constitution, abolishing slavery, and the fourteenth amendment, which prohibits certain restrictive legislation on the part of the states.

1. That it does not conflict with the thirteenth amendment, which abolished slavery and involuntary servitude, except § a punishment for crime, is too clear for argument. Slavery implies involuntary servitude,—a state of bondage; the ownership of mankind as a chattel, or, at least, the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property, and services. This amendment was said in the Slaughter-House Cases, 16 Wall. 36, to have been intended primarily to abolish slavery, as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade, when they amounted to slavery or involuntary servitude, and that the use of the word 'servitude' was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name. It was intimated, however, in that case, that this amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern states, imposing upon the colored race onerous disabilities and burdens, and curtailing their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value; and that the fourteenth amendment was devised to meet this exigency.

So, too, in the Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people, cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but*543 only as involving an ordinary civil injury, properly cognizable by the laws of the state, and presumably subject to redress by those laws until the contrary appears. 'It would be running the slavery question into the ground,' said Mr. Justice Bradley, 'to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business.'

A statute which implies merely a legal distinction between the white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or re-establish a state of involuntary servitude. Indeed, we do not understand that the thirteenth amendment is strenuously relied upon by the plaintiff in error in this connection.

2. By the fourteenth amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the state wherein they reside; and the states are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty, or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.

The proper construction of this amendment was first called to the attention of this court in the Slaughter-House Cases, 16 Wall. 36, which involved, however, not a question of race, but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race, but it was said generally that its main purpose was to establish the citizenship of the negro, to give definitions of citizenship of the United States and of the states, and to protect from the hostile legislation of the states the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the states.

*544The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguish d from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.

One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. 198, in which the supreme judicial court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools.

'The great principle,' said Chief Justice Shaw, 'advanced by the learned and eloquent advocate for the plaintiff [Mr. Charles Sumner], is that, by the constitution and laws of Massachusetts, all persons, without distinction of age or sex, birth or color, origin or condition, are equal before the law. * * * But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security.'

It was held that the powers of the committee extended to the establish*545ment of separate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school, and yet have not acquired the rudiments of learning, to enable them to enter the ordinary schools. Similar laws have been enacted by congress under its general power of legislation over the District of Columbia (sections 281-283, 310, 319, Rev. St. D. C.), as well as by the legislatures of many of the states, and have been generally, if not uniformly, sustained by the courts. State v. McCann, 21 Ohio St. 210; Lehew v. Brummell (Mo. Sup.) 15 S. W. 765; Ward v. Flood, 48 Cal. 36; Bertonneau v. Directors of City Schools, 3 Woods, 177, Fed. Cas. No. 1,361; People v. Gallagher, 93 N. Y. 438; Cory v. Carter, 48 Ind. 337; Dawson v. Lee, 83 Ky. 49.

Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the state. State v. Gibson, 36 Ind. 389.

The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theaters, and railway carriages has been frequently drawn by this court. Thus, in Strauder v. West Virginia, 100 U. S. 303, it was held that a law of West Virginia limiting to white male persons 21 years of age, and citizens of the state, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step towards reducing them to a condition of servility. Indeed, the right of a colored man that, in the selection of jurors to pass upon his life, liberty, and property, there shall be no exclusion of his race, and no discrimination against them because of color, has been asserted in a number of cases. Virginia v. Rivers, 100 U. S. 313; Neal v. Delaware, 103 U. S. 370; Bush v. Com., 107 U. S. 110, 1 Sup. Ct. 625; Gibson v. Mississippi, 162 U. S. 565, 16 Sup. Ct. 904. So, where the laws of a particular locality or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of*546 color, we have held that this meant that persons of color should travel in the same car as white ones, and that the enactment was not satisfied by the company providing cars assigned exclusively to people of color, though they were as good as those which they assigned exclusively to white persons. Railroad Co. v. Brown, 17 Wall. 445.

Upon the other hand, where a statute of Louisiana required those engaged in the transportation of passengers among the states to give to all persons traveling within that state, upon vessels employed in that business, equal rights and privileges in all parts of the vessel, without distinction on account of race or color, and subjected to an action for damages the owner of such a vessel who excluded colored passengers on account of their color from the cabin set aside by him for the use of whites, it was held to be, so far as it applied to interstate commerce, unconstitutional and void. Hall v. De Cuir, 95 U. S. 485. The court in this case, however, expressly disclaimed that it had anything whatever to do with the statute as a regulation of internal commerce, or affecting anything else than commerce among the states.

In the Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, it was held that an act of congress entitling all persons within the jurisdiction of the United States to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, on land or water, theaters, and other places of public amusement, and made applicable to citizens of every race and color, regardless of any previous condition of servitude, was unconstitutional and void, upon the ground that the fourteenth amendment was prohibitory upon the states only, and the legislation authorized to be adopted by congress for enforcing it was not direct legislation on matters respecting which the states were prohibited from making or enforcing certain laws, or doing certain acts, but was corrective legislation, such as might be necessary or proper for counter-acting and redressing the effect of such laws or acts. In delivering the opinion of the court, Mr. Justice Bradley observed that the fourteenth amendment 'does not invest congress with power to legislate upon subjects that are within the*547 domain of state legislation, but to provide modes of relief against state legislation or state action of the kind referred to. It does not authorize congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the fourteenth amendment; but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect.'

Much nearer, and, indeed, almost directly in point, is the case of the Louisville, N. O. & T. Ry. Co. v. State, 133 U. S. 587, 10 Sup. Ct. 348, wherein the railway company was indicted for a violation of a statute of Mississippi, enacting that all railroads carrying passengers should provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a partition, so as to secure separate accommodations. The case was presented in a different aspect from the one under consideration, inasmuch as it was an indictment against the railway company for failing to provide the separate accommodations, but the question considered was the constitutionality of the law. In that case, the supreme court of Mississippi (66 Miss. 662, 6 South. 203) had held that the statute applied solely to commerce within the state, and, that being the construction of the state statute by its highest court, was accepted as conclusive. 'If it be a matter,' said the court (page 591, 133 U. S., and page 348, 10 Sup. Ct.), 'respecting commerce wholly within a state, and not interfering with commerce between the states, then, obviously, there is no violation of the commerce clause of the federal constitution. * * * No question arises under this section as to the power of the state to separate in different compartments interstate pas*548sengers, or affect, in any manner, the privileges and rights of such passengers. All that we can consider is whether the state has the power to require that railroad trains within her limits shall have separate accommodations for the two races. That affecting only commerce within the state is no invasion of the power given to congress by the commerce clause.'

A like course of reasoning applies to the case under consideration, since the supreme court of Louisiana, in the case of State v. Judge, 44 La. Ann. 770, 11 South. 74, held that the statute in question did not apply to interstate passengers, but was confined in its application to passengers traveling exclusively within the borders of the state. The case was decided largely upon the authority of Louisville, N. O. & T. Ry. Co. v. State, 66 Miss. 662, 6 South, 203, and affirmed by this court in 133 U. S. 587, 10 Sup. Ct. 348. In the present case no question of interference with interstate commerce can possibly arise, since the East Louisiana Railway appears to have been purely a local line, with both its termini within the state of Louisiana. Similar statutes for the separation of the two races upon public conveyances were held to be constitutional in Railroad v. Miles, 55 Pa. St. 209; Day v. Owen 5 Mich. 520; Railway Co. v. Williams, 55 Ill. 185; Railroad Co. v. Wells, 85 Tenn. 613; 4 S. W. 5; Railroad Co. v. Benson, 85 Tenn. 627, 4 S. W. 5; The Sue, 22 Fed. 843; Logwood v. Railroad Co., 23 Fed. 318; McGuinn v. Forbes, 37 Fed. 639; People v. King (N. Y. App.) 18 N. E. 245; Houck v. Railway Co., 38 Fed. 226; Heard v. Railroad Co., 3 Inter St. Commerce Com. R. 111, 1 Inter St. Commerce Com. R. 428.

While we think the enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the fourteenth amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act that denies to the passenger compensa*549tion in damages for a refusal to receive him into the coach in which he properly belongs is a valid exercise of the legislative power. Indeed, we understand it to be conceded by the state's attorney that such part of the act as exempts from liability the railway company and its officers is unconstitutional. The power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular state, is to be deemed a white, and who a colored, person. This question, though indicated in the brief of the plaintiff in error, does not properly arise upon the record in this case, since the only issue made is as to the unconstitutionality of the act, so far as it requires the railway to provide separate accommodations, and the conductor to assign passengers according to their race.

It is claimed by the plaintiff in error that, in an mixed community, the reputation of belonging to the dominant race, in this instance the white race, is 'property,' in the same sense that a right of action or of inheritance is property. Conceding this to be so, for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man, and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called 'property.' Upon the other hand, if he be a colored man, and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.

In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men's houses to be painted white, and colored men's black, or their vehicles or business signs to be of different colors, upon the theory that one side*550 of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class. Thus, in Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, it was held by this court that a municipal ordinance of the city of San Francisco, to regulate the carrying on of public laundries within the limits of the municipality, violated the provisions of the constitution of the United States, if it conferred upon the municipal authorities arbitrary power, at their own will, and without regard to discretion, in the legal sense of the term, to give or withhold consent as to persons or places, without regard to the competency of the persons applying or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power. Railroad Co. v. Husen, 95 U. S. 465; Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 16 Sup. Ct. 714, and cases cited on page 700, 161 U. S., and page 714, 16 Sup. Ct.; Daggett v. Hudson, 43 Ohio St. 548, 3 N. E. 538; Capen v. Foster, 12 Pick. 485; State v. Baker, 38 Wis. 71; Monroe v. Collins, 17 Ohio St. 665; Hulseman v. Rems, 41 Pa. St. 396; Osman v. Riley, 15 Cal. 48.

So far, then, as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances*551 is unreasonable, or more obnoxious to the fourteenth amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals. As was said by the court of appeals of New York in People v. Gallagher, 93 N. Y. 438, 448:

'This end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.'

Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly*552 or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.

It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different states; some holding that any visible admixture of black blood stamps the person as belonging to the colored race (State v. Chavers, 5 Jones [N. C.] 1); others, that it depends upon the preponderance of blood (Gray v. State, 4 Ohio, 354; Monroe v. Collins, 17 Ohio St. 665); and still others, that the predominance of white blood must only be in the proportion of three-fourths (People v. Dean, 14 Mich. 406; Jones v. Com., 80 Va. 544). But these are questions to be determined under the laws of each state, and are not properly put in issue in this case. Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.

The judgment of the court below is therefore affirmed.

Mr. Justice BREWER did not hear the argument or participate in the decision of this case.

Mr. Justice HARLAN dissenting.

By the Louisiana statute the validity of which is here involved, all railway companies (other than street-railroad companies) carry passengers in that state are required to have separate but equal accommodations for white and colored persons, 'by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.' Under this statute, no colored person is permitted to occupy a seat in a coach assigned to white persons; nor any white person to occupy a seat in a coach assigned to colored persons. The managers of the railroad are not allowed to exercise any discretion in the premises, but are required to assign each passenger to some coach or compartment set apart for the exclusive use of is race. If a passenger insists upon going into a coach or compartment not set apart for persons of his race,*553 he is subject to be fined, or to be imprisoned in the parish jail. Penalties are prescribed for the refusal or neglect of the officers, directors, conductors, and employees of railroad companies to comply with the provisions of the act.

Only 'nurses attending children of the other race' are excepted from the operation of the statute. No exception is made of colored attendants traveling with adults. A white man is not permitted to have his colored servant with him in the same coach, even if his condition of health requires the constant personal assistance of such servant. If a colored maid insists upon riding in the same coach with a white woman whom she has been employed to serve, and who may need her personal attention while traveling, she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty.

While there may be in Louisiana persons of different races who are not citizens of the United States, the words in the act 'white and colored races' necessarily include all citizens of the United States of both races residing in that state. So that we have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race.

Thus, the state regulates the use of a public highway by citizens of the United States solely upon the basis of race.

However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the constitution of the United States.

That a railroad is a public highway, and that the corporation which owns or operates it is in the exercise of public functions, is not, at this day, to be disputed. Mr. Justice Nelson, speaking for this court in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 382, said that a common carrier was in the exercise 'of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned.' Mr. Justice Strong, delivering the judgment of*554 this court in Olcott v. Supervisors, 16 Wall. 678, 694, said: 'That railroads, though constructed by private corporations, and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the question arose whether a state's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly, it could not, unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Yet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use?' So, in Township of Pine Grove v. Talcott, 19 Wall. 666, 676: 'Though the corporation [a railroad company] was private, its work was public, as much so as if it were to be constructed by the state.' So, in Inhabitants of Worcester v. Western R. Corp., 4 Metc. (Mass.) 564: 'The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike, or highway, a public easement.' 'It is true that the real and personal property, necessary to the establishment and management of the railroad, is vested in the corporation; but it is in trust for the public.'

In respect of civil rights, common to all citizens, the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the*555 race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States.

The thirteenth amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But, that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the fourteenth amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,' and that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the fifteenth amendment that 'the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.'

These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely, to secure 'to a race recently emancipated, a race that through*556 many generations have been held in slavery, all the civil rights that the superior race enjoy.' They declared, in legal effect, this court has further said, 'that the law in the states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states; and in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.' We also said: 'The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity or right, most valuable to the colored race,—the right to exemption from unfriendly legislation against them distinctively as colored; exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy; and discriminations which are steps towards reducing them to the condition of a subject race.' It was, consequently, adjudged that a state law that excluded citizens of the colored race from juries, because of their race, however well qualified in other respects to discharge the duties of jurymen, was repugnant to the fourteenth amendment. Strauder v. West Virginia, 100 U. S. 303, 306, 307; Virginia v. Rives, Id. 313; Ex parte Virginia, Id. 339; Neal v. Delaware, 103 U. S. 370, 386; Bush v. Com., 107 U. S. 110, 116, 1 Sup. Ct. 625. At the present term, referring to the previous adjudications, this court declared that 'underlying all of those decisions is the principle that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government or the states against any citizen because of his race. All citizens are equal before the law.' Gibson v. State, 162 U. S. 565, 16 Sup. Ct. 904.

The decisions referred to show the scope of the recent amendments of the constitution. They also show that it is not within the power of a state to prohibit colored citizens, because of their race, from participating as jurors in the administration of justice.

It was said in argument that the statute of Louisiana does *557 not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of commodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute, is that it interferes with the personal freedom of citizens. ‘Personal liberty,’ it has been well said, ‘consists in the power of locomotion, of changing situation, or removing one's person to whatsoever places one's own inclination may direct, without imprisonment or restraint, unless by due course of law.’ 1 Bl. Comm. *134. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.

It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from traveling in the same public conveyance, and to punish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach. If a state can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street, and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in street cars or in open vehicles on a public road*558 or street? Why may it not require sheriffs to assign whites to one side of a court room, and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the state require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics?

The answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the la . Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid, and yet, upon grounds of public policy, may well be characterized as unreasonable. Mr. Sedgwick correctly states the rule when he says that, the legislative intention being clearly ascertained, 'the courts have no other duty to perform than to execute the legislative will, without any regard to their views as to the wisdom or justice of the particular enactment.' Sedg. St. & Const. Law, 324. There is a dangerous tendency in these latter days to enlarge the functions of the courts, by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are co-ordinate and separate. Each much keep within the limits defined by the constitution. And the courts best discharge their duty by executing the will of the law-making power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. Statutes must always have a reasonable construction. Sometimes they are to be construed strictly, sometimes literally, in order to carry out the legislative *559will. But, however construed, the intent of the legislature is to be respected if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If the power exists to enact a statute, that ends the matter so far as the courts are concerned. The adjudged cases in which statutes have been held to be void, because unreasonable, are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent.

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.

It was adjudged in that case that the descendants of Africans who were imported into this country, and sold as slaves, were not included nor intended to be included under the word 'citizens' in the constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States; that, at time of the adoption of the constitution, they were 'considered as a subordinate and inferior class of beings, who had been subjugated by the dominant*560 race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.' 17 How. 393, 404. The recent amendments of the constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the states, a dominant race,—a superior class of citizens,—which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the constitution, by one of which the blacks of this country were made citizens of the United States and of the states in which they respectively reside, and whose privileges and immunities, as citizens, the states are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.

The sure guaranty of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race. State enactments regulating the enjoyment of civil rights upon the basis of race, and cunningly devised to defeat legitimate results of the*561 war, under the pretense of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration; for social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot box in order to exercise the high privilege of voting.

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the state and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. He does not object, nor, perhaps, would he object to separate coaches for his race if his rights under the law were recognized. But he does object, and he ought never to cease objecting, that citizens of the white and black races can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway.

*562The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the constitution. It cannot be justified upon any legal grounds.

If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens,—our equals before the law. The thin disguise of 'equal' accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.

The result of the whole matter is that while this court has frequently adjudged, and at the present term has recognized the doctrine, that a state cannot, consistently with the constitution of the United States, prevent white and black citizens, having the required qualifications for jury service, from sitting in the same jury box, it is now solemnly held that a state may prohibit white and black citizens from sitting in the same passenger coach on a public highway, or may require that they be separated by a 'partition' when in the same passenger coach. May it not now be reasonably expected that astute men of the dominant race, who affect to be disturbed at the possibility that the integrity of the white race may be corrupted, or that its supremacy will be imperiled, by contact on public highways with black people, will endeavor to procure statutes requiring white and black jurors to be separated in the jury box by a 'partition,' and that, upon retiring from the court room to consult as to their verdict, such partition, if it be a movable one, shall be taken to their consultation room, and set up in such way as to prevent black jurors from coming too close to their brother jurors of the white race. If the 'partition' used in the court room happens to be stationary, provision could be made for screens with openings through*563 which jurors of the two races could confer as to their verdict without coming into personal contact with each other. I cannot see but that, according to the principles this day announced, such state legislation, although conceived in hostility to, and enacted for the purpose of humiliating, citizens of the United States of a particular race, would be held to be consistent with the constitution.

I do not deem it necessary to review the decisions of state courts to which reference was made in argument. Some, and the most important, of them, are wholly inapplicable, because rendered prior to the adoption of the last amendments of the constitution, when colored people had very few rights which the dominant race felt obliged to respect. Others were made at a time when public opinion, in many localities, was dominated by the institution of slavery; when it would not have been safe to do justice to the black man; and when, so far as the rights of blacks were concerned, race prejudice was, practically, the supreme law of the land. Those decisions cannot be guides in the era introduced by the recent amendments of the supreme law, which established universal civil freedom, gave citizenship to all born or naturalized in the United States, and residing ere, obliterated the race line from our systems of governments, national and state, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law.

I am of opinion that the state of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that state, and hostile to both the spirit and letter of the constitution of the United States. If laws of like character should be enacted in the several states of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law, would, it is true, have disappeared from our country; but there would remain a power in the states, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community, called the*564 'People of the United States,' for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guaranty given by the constitution to each state of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding.

For the reason stated, I am constrained to withhold my assent from the opinion and judgment of the majority.

          Respondents Harley and Sellers, both Negroes (hereinafter respondents), whose applications to become police officers in the District of Columbia had been rejected, in an action against District of Columbia officials (petitioners) and others, claimed that the Police Department's recruiting procedures, including a written personnel test (Test 21), were racially discriminatory and violated the Due Process Clause of the Fifth Amendment, 42 U.S.C. § 1981, and D.C.Code § 1-320. Test 21 is administered generally to prospective Government employees to determine whether applicants have acquired a particular level of verbal skill. Respondents contended that the test bore no relationship to job performance and excluded a disproportionately high number of Negro applicants. Focusing solely on Test 21, the parties filed cross-motions for summary judgment. The District Court, noting the absence of any claim of intentional discrimination, found that respondents' evidence supporting their motion warranted the conclusions that (a) the number of black police officers, while substantial, is not proportionate to the city's population mix; (b) a higher percentage of blacks fail the test than whites; and (c) the test has not been validated to establish its reliability for measuring subsequent job performance. While that showing sufficed to shift the burden of proof to the defendants in the action, the court concluded that respondents were not entitled to relief, and granted petitioners' motion for summary judgment, in view of the facts that 44% Of new police recruits were black, a figure proportionate to the blacks on the total force and equal to the number of 20- to 29-year-old blacks in the recruiting area; that the Police Department had affirmatively sought to recruit blacks, many of whom passed the test but failed to report for duty; and that the test was a useful indicator of training school performance (precluding the need to show validation in terms of job performance) and was not designed to, and did not, discriminate against otherwise qualified blacks. Respondents on

Page 230

appeal contended that their summary judgment motion (which was based solely on the contention that Test 21 invidiously discriminated against Negroes in violation of the Fifth Amendment) should have been granted. The Court of Appeals reversed, and directed summary judgment in favor of respondents, having applied to the constitutional issue the statutory standards enunciated in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, which held that Title VII of the Civil Rights Act of 1964, as amended, prohibits the use ofests that operate to exclude members of minority groups, unless the employer demonstrates that the procedures are substantially related to job performance. The court held that the lack of discriminatory intent in the enactment and administration of Test 21 was irrelevant; that the critical fact was that four times as many blacks as whites failed the test; and that such disproportionate impact sufficed to establish a constitutional violation, absent any proof by petitioners that the test adequately measured job performance. Held:

          1. The Court of Appeals erred in resolving the Fifth Amendment issue by applying standards applicable to Title VII cases. Pp. 238-248.

          (a) Though the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the Government from invidious discrimination, it does not follow that a law or other official act is unconstitutional Solely because it has a racially disproportionate impact regardless of whether it reflects a racially discriminatory purpose. Pp. 239-245.

          (b) The Constitution does not prevent the Government from seeking through Test 21 modestly to upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of competence, particularly where the job requires special abilities to communicate orally and in writing; and respondents, as Negroes, could no more ascribe their failure to pass the test to denial of equal protection than could whites who also failed. Pp. 245-246.

          (c) The disproportionate impact of Test 21, which is neutral on its face, does not warrant the conclusion that the test was a purposely discriminatory device, and on the facts before it the District Court properly held that any inference of discrimination was unwarranted. P. 246.

          (d) The rigorous statutory standard of Title VII involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is

Page 231

appropriate under the Constitution where, as in this case, special racial impact but no discriminatory purpose is claimed. Any extension of that statutory standard should await legislative prescription. Pp. 246-248.

          2. Statutory standards similar to those obtaining under Title VII were also satisfied here. The District Court's conclusion that Test 21 was directly related to the requirements of the police training program and that a positive relationship between the test and that program was sufficient to validate the test (wholly aside from its possible relationship to actual performance as a police officer) is fully supported on the record in this case, and no remand to establish further validation is appropriate. Pp. 248-252.

          168 U.S.App.D.C. 42, 512 F.2d 956, reversed.

          David P. Sutton, Washington, D. C., for petitioners.

          Mark L. Evans, Washington, D. C., for the federal respondents.

          Richard B. Sobol, Washington, D. C., for respondents Davis et al.

Page 232

           Mr. Justice WHITE delivered the opinion of the Court.

          This case involves the validity of a qualifying test administered to applicants for positions as police officers in the District of Columbia Metropolitan Police Department. The test was sustained by the District Court but invalidated by the Court of Appeals. We are in agreement with the District Court and hence reverse the judgment of the Court of Appeals.

          This action began on April 10, 1970, when two Negro police officers filed suit against the then Commissioner of the District of Columbia, the Chief of the District's Metropolitan Police Department, and the Commissioners of the United States Civil Service Commission.¹ An amended complaint, filed December 10, alleged that the promotion policies of the Department were racially discriminatory and sought a declaratory judgment and an injunction. The respondents Harley and Sellers were permitted to intervene, their amended complaint assert-

Page 233

ing that their applications to become officers in the Department had been rejected, and that the Department's recruiting procedures discriminated on the basis of race against black applicants by a series of practices including, but not limited to, a written personnel test which excluded a disproportionately high number of Negro applicants. These practices were asserted to violate respondents' rights "under the due process clause of the Fifth Amendment to the United States Constitution, under 42 U.S.C. § 1981 and under D.C.Code § 1-320."² Defendants answered, and discovery and

Page 234

various other proceedings followed.³Respondents then filed a motion for partial summary judgment with respect to the recruiting phase of the case, seeking a declaration that the test administered to those applying to become police officers is "unlawfully discriminatory and thereby in violation of the due process clause of the Fifth Amendment . . . ." No issue under any statute or regulation was raised by the motion. The District of Columbia defendants, petitioners here, and the federal parties also filed motions for summary judgment with respect to the recruiting aspects of the case, asserting that respondents were entitled to relief on neither constitutional nor statutory grounds.⁴ The District Court granted petitioners' and denied respondents' motions. 348 F.Supp. 15 (DC1972).

          According to the findings and conclusions of the District Court, to be accepted by the Department and to enter an intensive 17-week training program, the police recruit was required to satisfy certain physical and character standards, to be a high school graduate or its equivalent, and to receive a grade of at least 40 out of 80 on "Test 21," which is "an examination that is used generally throughout the federal service," which "was developed by the Civil Service Commission, not the Police Department,"

Page 235

and which was "designed to test verbal ability, vocabulary, reading and comprehension." Id., at 16.

          The validity of Test 21 was the sole issue before the court on the motions for summary judgment. The District Court noted that there was no claim of "an intentional discrimination or purposeful discriminatory acts" but only a claim that Test 21 bore no relationship to job performance and "has a highly discriminatory impact in screening out black candidates." Ibid. Respondents' evidence, the District Court said, warranted three conclusions: "(a) The number of black police officers, while substantial, is not proportionate to the population mix of the city. (b) A higher percentage of blacks fail the Test than whites. (c) The Test has not been validated to establish its reliability for measuring subsequent job performance." Ibid. This showing was deemed sufficient to shift the burden of proof to the defendants in the action, petitioners here; but the court nevertheless concluded that on the undisputed facts respondents were not entitled to relief. The District Court relied on several factors. Since August 1969, 44% Of new police force recruits had been black; that figure also represented the proportion of blacks on the total force and was roughly equivalent to 20- to 29-year-old blacks in the 50-mile radius in which the recruiting efforts of the Police Department had been concentrated. It was undisputed that the Department had systematically and affirmatively sought to enroll black officers many of whom passed the test but failed to report for duty. The District Court rejected the assertion that Test 21 was culturally slanted to favor whites and was "satisfied that the undisputable facts prove the test to be reasonably and directly related to the requirements of the police recruit training program and that it is neither so designed nor operates (Sic ) to discriminate

Page 236

against otherwise qualified blacks' Id., at 17. It was thus not necessary to show that Test 21 was not only a useful indicator of training school performance but had also been validated in terms of job performance "The lack of job performance validation does not defeat the Test, given its direct relationship to recruiting and the valid part it plays in this process." Ibid. The District Court ultimately concluded that "(t)he proof is wholly lacking that a police officer qualifies on the color of his skin rather than ability" and that the Department "should not be required on this showing to lower standards or to abandon efforts to achieve excellence." ⁵ Id., at 18.

          Having lost on both constitutional and statutory issues in the District Court, respondents brought the case to the Court of Appeals claiming that their summary judgment motion, which rested on purely constitutional grounds, should have been granted. The tendered constitutional issue was whether the use of Test 21 invidiously discriminated against Negroes and hence denied them due process of law contrary to the commands of the Fifth Amendment. The Court of Appeals, addressing that issue, announced that it would be guided by Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), a case involving the interpretation and application of Title VII of the Civil Rights Act of 1964, and held that the statutory standards elucidated in that case were to govern the due process question tendered in this one.⁶ 168 U.S.App.D.C. 42,

Page 237

512 F.2d 956 (1975). e court went on to declare that lack of discriminatory intent in designing and administering Test 21 was irrelevant; the critical fact was rather that a far greater proportion of blacks four times as many failed the test than did whites. This disproportionate impact, standing alone and without regard to whether it indicated a discriminatory purpose, was held sufficient to establish a constitutional violation, absent proof by petitioners that the test was an adequate measure of job performance in addition to being an indicator of probable success in the training program, a burden which the court ruled petitioners had failed to discharge. That the Department had made substantial efforts to recruit blacks was held beside the point and the fact that the racial distribution of recent hirings and of the Department itself might be roughly equivalent to the racial makeup of the surrounding community, broadly conceived, was put aside as a "comparison (not) material to this appeal." Id., at 46 n. 24, 512 F.2d, at 960 n. 24. The Court of Appeals, over a dissent, accordingly reversed the judgment of the District Court and directed that respondents' motion for partial summary judgment be granted. We granted the petition for certiorari, 423 U.S. 820, 96 S.Ct. 33, 46 L.Ed.2d 37 (1975), filed by the District of Columbia officials.⁷

Page 238

          Because the Court of Appeals erroneously applied the legal standards applicable to Title VII cases in resolving the constitutional issue before it, we reverse its judgment in respondents' favor. Although the petition for certiorari did not present this ground for reversal,⁸ our Rule 40(1)(d)(2) provides that we "may notice a plain error not presented"; ⁹ and this is an appropriate occasion to invoke the Rule.

          As the Court of Appeals understood Title VII,¹⁰ employees or applicants proceeding under it need not concern themselves with the employer's possibly discriminatory purpose but instead may focus solely on the racially differential impact of the challenged hiring or promotion

Page 239

practices. This is not the constitutional rule. We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today.

          The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional Solely because it has a racially disproportionate impact.

          Almost 100 years ago, Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), established that the exclusion of Negroes from grand and petit juries in criminal proceedings violated the Equal Protection Clause, but the fact that a particular jury or a series of juries does not statistically reflect the racial composition of the community does not in itself make out an invidious discrimination forbidden by the Clause. "A purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race or by unequal application of the law to such an extent as to show intentional discrimination." Akins v. Texas, 325 U.S. 398, 403-404, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692, 1696 (1945). A defendant in a criminal case is entitled "to require that the State not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice." Alexander v. Louisiana, 405 U.S. 625, 628-629, 92 S.Ct. 1221, 1224, 31 L.Ed.2d 536 (1972). See also Carter v. Jury Comm'n, 396 U.S. 320, 335-

Page 240

337, 339, 90 S.Ct. 5, 526-528, 529, 24 L.Ed.2d 549, 560-561, 562 (1970); Cassell v. Texas, 339 U.S. 282, 287-290, 70 S.Ct. 629, 631-633, 94 L.Ed. 839, 847-849 (1950); Patton v. Mississippi, 332 U.S. 463, 468-469, 68 S.Ct. 184, 187, 92 L.Ed. 76, 80 (1947).

          The rule is the same in other contexts. Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964), upheld a New York congressional apportionment statute against claims that district lines had been racially gerrymandered. The challenged districts were made up predominantly of whites or of minority races, and their boundaries were irregularly drawn. The challengers did not prevail because they failed to prove that the New York Legislature "was either motivated by racial considerations or in fact drew the districts on racial lines"; the plaintiffs had not shown that the statute "was the product of a state contrivance to segregate on the basis of race or place of origin." Id., at 56, 58, 84 S.Ct., at 605, 11 L.Ed.2d, at 515. The dissenters were in agreement that the issue was whether the "boundaries . . . were purposefully drawn on racial lines." Id., at 67, 84 S.Ct., at 611, 11 L.Ed.2d, at 522.

          The school desegregation cases have also adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose. That there are both predominantly black and predominantly white schools in a community is not alone violative of the Equal Protection Clause. The essential element of De jure segregation is "a current condition of segregation resulting from intentional state action. Keyes v. School Dist. No. 1, 413 U.S. 189, 205, 93 S.Ct. 2686, 2696, 37 L.Ed.2d 548 (1973). The differentiating factor between De jure segregation and so-called De facto segregation . . . is Purpose or Intent to segregate." Id., at 208, 93 S.Ct., at 2696, 37 L.Ed.2d, at 561. See also Id., at 199, 211, 213, 93 S.Ct. at 2692, 2698, 2699, 37 L.Ed.2d, at 558, 564, 566. The Court has also recently rejected allegations of racial discrimination based solely on the statistically disproportionate racial impact of various provisions of the Social Security Act because "(t)he acceptance of appellants'

Page 241

constitutional theory would render suspect each difference in treatment among the grant classes, however lacking in racial motivation and however otherwise rational the treatment might be." Jefferson v. Hackney, 406 U.S. 535, 548, 92 S.Ct. 1724, 1732, 32 L.Ed.2d 285, 297 (1972). And compare Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969), with James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971).

          This is not to say that the necessary discriminatory racial purpose must be express or appear on the face of the statute, or that a law's disproportionate impact is irrelevant in cases involving Constitution-based claims of racial discrimination. A statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). It is also clear from the cases dealing with racial discrimination in the selection of juries that the systematic exclusion of Negroes is itself such an "unequal application of the law . . . as to show intentional discrimination." Akins v. Texas, supra, 325 U.S., at 404, 65 S.Ct., at 1279, 89 L.Ed., at 1696. Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1881). A prima facie case of discriminatory purpose may be proved as well by the absence of Negroes on a particular jury combined with the failure of the jury commissioners to be informed of eligible Negro jurors in a community, Hill v. Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559, 1562 (1942), or with racially non-neutral selection procedures, Alexander v. Louisiana, supra ; Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). With a prima facie case made out, "the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result." Alexander, supra, 405 U.S., at 632, 92 S.Ct., at 1226, 31 L.Ed.2d, at 542. See also Turner v. Fouche, 396 U.S. 346, 361, 90 S.Ct. 532, 540, 24 L.Ed.2d 567, 579 (1970); Eubanks v. Louisiana, 356 U.S. 584, 587, 78 S.Ct. 970, 973, 2 L.Ed.2d 991, 994 (1958).

Page 242

          Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact in the jury cases for example, the total or seriously disproportionate exclusion of Negroes from jury venires may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds. Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule, McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964), that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.

          There are some indications to the contrary in our cases. In Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), the city of Jackson, Miss., following a court decree to this effect, desegregated all of its public facilities save five swimming pools which had been operated by the city and which, following the decree, were closed by ordinance pursuant to a determination by the city council that closure was necessary to preserve peace and order and that integrated pools could not be economically operated. Accepting the finding that the pools were closed to avoid violence and economic loss, this Court rejected the argument that the abandonment of this service was inconsistent with the outstanding desegregation decree and that the otherwise seemingly permissible ends served by the ordinance could be impeached by demonstrating that

Page 243

racially invidious motivations had prompted the city council's action. The holding was that the city was not overtly or covertly operating segregated pools and was extending identical treatment to both whites and Negroes. The opinion warned against grounding decision on legislative purpose or motivation, thereby lending support for the proposition that the operative effect of the law rather than its purpose is the paramount factor. But the holding of the case was that the legitimate purposes of the ordinance to preserve peace and avoid deficits were not open to impeachment by evidence that the councilmen were actually motivated by racial considerations. Whatever dicta the opinion may contain, the decision did not involve, much less invalidate, a statute or ordinary having neutral purposes but disproportionate racial consequences.

          Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972), also indicates that in proper circumstances, the racial impact of a law, rather than its discriminatory purpose, is the critical factor. That case involved the division of a school district. The issue was whether the division was consistent with an outstanding order of a federal court to desegregate the dual school system found to have existed in the area. The constitutional predicate for the District Court's invalidation of the divided district was "the enforcement until 1969 of racial segregation in a public school system of which Emporia had always been a part." Id., at 459, 92 S.Ct., at 2202, 33 L.Ed.2d, at 60. There was thus no need to find "an independent constitutional violation." Ibid. Citing Palmer v. Thompson, we agreed with the District Court that the division of the district had the effect of interfering with the federal decree and should be set aside.

          That neither Palmer Nor Wright was understood to have changed the prevailing rule is apparent from Keyes v. School Dist. No. 1, supra, where the principal issue

Page 244

in litigation was whether to what extent there had been purposeful discrimination resulting in a partially or wholly segregated school system. Nor did other later cases, Alexander v. Louisiana, supra, and Jefferson v. Hackney, supra, indicate that either Palmer or Wright had worked a fundamental change in equal protection law.¹¹

          Both before and after Palmer v. Thompson, however, various Courts of Appeals have held in several contexts, including public employment, that the substantially disproportionate racial impact of a statute or official practice standing alone and without regard to discriminatory purpose, suffices to prove racial discrimination violating the Equal Protection Clause absent some justification going substantially beyond what would be necessary to validate most other legislative classifications.¹² The

Page 245

cases impressively demonstrate that there is another side to the issue; but, with all due respect, to the extent that those cases rested on or expressed the view that proof of discriminatory racial purpose is unnecessary in making out an equal protection violation, we are in disagreement.

          As an initial matter, we have difficulty understanding how a law establishing a racially neutral qualification for employment is nevertheless racially discriminatory and denies "any person . . . equal protection of the laws" simply because a greater proportion of Negroes fail to qualify than members of other racial or ethnic groups. Had respondents, along with all others who had failed Test 21, whether white or black, brought an action claiming that the test denied each of them equal protection of the laws as compared with those who had passed with high enough scores to qualify them as police recruits, it is most unlikely that their challenge would have been sustained. Test 21, which is administered generally to prospective Government employees, concededly seeks to ascertain whether those who take it have acquired a particular level of verbal skill; and it is untenable that

Page 246

the Constitution prevents the Government from seeking modestly to upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of competence, particularly where the job requires special ability to communicate orally and in writing. Respondents, as Negroes, could no more successfully claim that the test denied them equal protection than could white applicants who also failed. The conclusion would not be different in the face of proof that more Negroes than whites had been disqualified by Test 21. That other Negroes also failed to score well would, alone, not demonstrate that respondents individually were being denied equal protection of the laws by the application of an otherwise valid qualifying test being administered to prospective police recruits.

          Nor on the facts of the case before us would the disproportionate impact of Test 21 warrant the conclusion that it is a purposeful device to discriminate against Negroes and hence an infringement of the constitutional rights of respondents as well as other black applicants. As we have said, the test is neutral on its face and rationally may be said to serve a purpose the Government is constitutionally empowered to pursue. Even agreeing with the District Court that the differential racial effect of Test 21 called for further inquiry, we think the District Court correctly held that the affirmative efforts of the Metropolitan Police Department to recruit black officers, the changing racial composition of the recruit classes and of the force in general, and the relationship of the test to the training program negated any inference that the Department discriminated on the basis of race or that "a police officer qualifies on the color of his skin rather than ability." 348 F.Supp., at 18.

          Under Title VII, Congress provided that when hiring

Page 247

and promotion practices disqualifying substantially disprortionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an insufficient response to demonstrate some rational basis for the challenged practices. It is necessary, in addition, that they be "validated" in terms of job performance in any one of several ways, perhaps by ascertaining the minimum skill, ability, or potential necessary for the position at issue and determining whether the qualifying tests are appropriate for the selection of qualified applicants for the job in question.¹³ However this process proceeds, it involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed. We are not disposed to adopt this more rigorous standard for the purposes

Page 248

of applying the Fifth and the Fourteenth Amendments in cases such as this

          A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.¹⁴

            Given that rule, such consequences would perhaps be likely to follow. However, in our view, extension of the rule beyond those areas where it is already applicable by reason of statute, such as in the field of public employment, should await legislative prescription.

          As we have indicated, it was error to direct summary judgment for respondents based on the Fifth Amendment.

          We also hold that the Court of Appeals should have affirmed the judgment of the District Court granting the motions for summary judgment filed by petitioners and the federal parties. Respondents were entitled to relief on neither constitutional nor statutory grounds.

Page 249

          The submission of the defendants in the District Court was that Test 21 complied with all applicable statutory as well as constitutional requirements; and they appear not to have disputed that under the statutes and regulations governing their conduct standards similar to those obtaining under Title VII had to be satisfied.¹⁵ The District Court also assumed that Title VII standards were to control the case identified the determinative issue as whether Test 21 was sufficiently job related and proceeded to uphold use of the test because it was "directly related to a determination of whether the applicant possesses sufficient skills requisite to the demands of the curriculum a recruit must master at the police academy." 348 F.Supp., at 17. The Court of Appeals reversed because the relationship between Test 21 and training school success, if demonstrated at all, did not satisfy what it deemed to be the crucial requirement

Page 250

of a direct relationship between performance on Test 21 and performance on the policeman's job.

          We agree with petitioners and the federal parties that this was error. The advisability of the police recruit training course informing the recruit about his upcoming job, acquainting him with its demands, and attempting to impart a modicum of required skills seems conceded. It is also apparent to us, as it was to the District Judge, that some minimum verbal and communicative skill would be very useful, if not essential, to satisfactory progress in the training regimen. Based on the evidence before him, the District Judge concluded that Test 21 was directly related to the requirements of the police training program and that a positive relationship between the test and training-course performance was sufficient to validate the former, wholly aside from its possible relationship to actual performance as a police officer. This conclusion of the District Judge that training-program validation may itself be sufficient is supported by regulations of the Civil Service Commission, by the opinion evidence placed before the District Judge, and by the current views of the Civil Service Commissioners who were parties to the case.¹⁶ Nor is the

Page 251

conclusion closed by either Griggs or Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); and it seems to us the much more sensible construction of the job-relatedness requirement.

          The District Court's accompanying conclusion that Test 21 was in fact directly related to the requirements of the police training program was supported by a validation study, as well as by other evidence of record; ¹⁷

Page 252

and we are not convinced that this conclusion was erroneous.

          The federal parties, whose views have somewhat changed since the decision of the Court of Appeals and who still insist that training-program validation is sufficient, now urge a remand to the District Court for the purpose of further inquiry into whether the training-program test scores, which were found to correlate with Test 21 scores, are themselves an appropriate measure of the trainee's mastership of the material taught in the course and whether the training program itself is sufficiently related to actual performance of the police officer's task. We think a remand is inappropriate. The District Court's judgment was warranted by the record before it, and we perceive no good reason to reopen it, particularly since we were informed at oral argument that although Test 21 is still being administered, the training program itself has undergone substantial modification in the course of this litigation. If there are now deficiencies in the recruiting practices under prevailing Title VII standards, those deficiencies are to be directly addressed in accordance with appropriate procedures mandated under that Title.

          The judgment of the Court of Appeals accordingly is reversed.

          So ordered.

          Mr. Justice STEWART joins Parts I and II of the Court's opinion.

           Mr. Justice STEVENS, concurring.

          While I agree with the Court's disposition of this case, I add these comments on the constitutional issue dis-

Page 253

cussed in Part II and the statutory issue discussed in Part III of the Court's opinion.

          The requirement of purposeful discrimination is a common thread running through the cases summarized in Part II. These cases include criminal convictions which were set aside because blacks were excluded from the grand jury, a reapportionment case in which political boundaries were obviously influenced to some extent by racial considerations, a school desegregation case, and a case involving the unequal administration of an ordinance purporting to prohibit the operation of laundries in frame buildings. Although it may be proper to use the same language to describe the constitutional claim in each of these contexts, the burden of proving a prima facie case may well involve differing evidentiary considerations. The extent of deference that one pays to the trial court's determination of the factual issue, and indeed, the extent to which one characterizes the intent issue as a question of fact or a question of law, will vary in different contexts.

          Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently the product of compromise, of collective decisionmaking, and of mixed motivation. It is unrealistic, on the one hand, to require the victim of alleged discrimination to uncover the actual subjective intent of the decisionmaker or, conversely, to invalidate otherwise legitimate action simply because an improper motive affected the deliberation of a participant in the decisional process. A law conscripting clerics should not be invalidated because an atheist voted for it.

Page 254

          My point in making this observation is to suggest that the line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court's opinion might assume. I agree, of course, that a constitutional issue does not arise every time some disproportionate impact is shown. On the other hand, when the disproportion is as dramatic as in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 or Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), it really does not matter whether the standard is phrased in terms of purpose or effect. Therefore, although I accept the statement of the general rule in the Court's opinion, I am not yet prepared to indicate how that standard should be applied in the many cases which have formulated the governing standard in different language.^*

          My agreement with the conclusion reached in Part II of the Court's opinion rests on a ground narrower than the Court describes. I do not rely at all on the evidence of good-faith efforts to recruit black police officers. In my judgment, neither those efforts nor the subjective good faith of the District administration, would save Test 21 if it were otherwise invalid.

          There are two reasons why I am convinced that the challenge to Test 21 is insufficient. First, the test serves the neutral and legitimate purpose of requiring all applicants to meet a uniform minimum standard of literacy. Reading ability is manifestly relevant to the police function, there is no evidence that the required passing grade was set at an arbitrarily high level, and there is sufficient disparity among high schools and high school graduates to justify the use of a separate uniform test. Second,

Page 255

the same test is used throughout the federal service. The applicants for employment in the District of Columbia Police Department represent such a small fraction of the total number of persons who have taken the test that their experience is of minimal probative value in assessing the neutrality of the test itself. That evidence, without more, is not sufficient to overcome the presumption that a test which is this widely used by the Federal Government is in fact neutral in its effect as well as its "purposes" that term is used in constitutional adjudication.

          My study of the statutory issue leads me to the same conclusion reached by the Court in Part III of its opinion. Since the Court of Appeals set aside the portion of the District Court's summary judgment granting the defendants' motion, I agree that we cannot ignore the statutory claims even though as the Court makes clear, Ante, at 238 n.10, there is not Title VII question in this case. The actual statutory holdings are limited to 42 U.S.C. § 1981 and § 1-320 of the District of Columbia Code, to which regulations of the Equal Employment Opportunity Commission have no direct application.

          The parties argued the case as though Title VII standards were applicable. In a general way those standards shed light on the issues, but there is sufficient individuality and complexity to that statute, and to the regulations promulgated under it, to make it inappropriate simply to transplant those standards in their entirety into a different statutory scheme having a different history. Moreover, the subject matter of this case the validity of qualifications for the law enforcement profession is one in which federal district judges have a greater expertise than in many others. I therefore do not regard this as a case in which the District Court was required to apply Title VII standards as strictly as would

Page 256

be necessary either in other contexts or in litigation actually arising under that statute.

          The Court's specific holding on the job-relatedness question contains, I believe, two components. First, as a matter of law, it is permissible for the police department to use a test for the purpose of predicting ability to master a training program even if the test does not otherwise predict ability to perform on the job. I regard this as a reasonable proposition and not inconsistent with the Court's prior holdings, although some of its prior language obviously did not contemplate this precise problem. Second, as a matter of fact, the District Court's finding that there was a correlation between success on the test and success in the training program has sufficient evidentiary support to withstand attack under the "clearly erroneous" standard mandated by Fed.Rule Civ.Proc. 52(a). Whether or not we would have made the same finding of fact, the opinion evidence identified in n. 17 of the Court's opinion and indeed the assumption made by the Court of Appeals quoted therein is surely adequate to support the finding under the proper standard of appellate review.

          On the understanding that nothing which I have said is inconsistent with the Court's reasoning, I join the opinion of the Court except to the extent that it expresses an opinion on the merits of the cases cited Ante, at 244-245, n. 12.

           Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.

          The Court holds that the job qualification examination (Test 21) given by the District of Columbia Metropolitan Police Department does not unlawfully discriminate on the basis of race under either constitutional or statutory standards.

Page 257

          Initially, it seems to me that the Court should not pass on the statutory questions, because they are not presented by this case. The Court says that respondents' summary judgment motion "rested on purely constitutional grounds," Ante, at 236, and that "the Court of Appeals erroneously applied the legal standards applicable to Title VII cases in resolving the constitutional issue before it," Ante, at 238. There is a suggestion, however, that petitioners are entitled to prevail because they met the burden of proof imposed by 5 U.S.C. § 3304. Ante, at 249 n. 15. As I understand the opinion, the Court therefore holds that Test 21 is job-related under § 3304, but not necessarily under Title VII. But that provision, by the Court's own analysis, is no more in the case than Title VII; respondents' "complaint asserted no claim under § 3304." Ante, at 234 n. 2. Cf. Ante, at 238 n. 10. If it was "plain error" for the Court of Appeals to apply a statutory standard to this case, as the Court asserts, Ante, at 238-239, then it is unfortunate that the Court does not recognize that it is also plain error to address the statutory issues in Part III of its opinion.

          Nevertheless, although it appears unnecessary to reach the statutory questions, I will accept the Court's conclusion that respondents were entitled to summary judgment if they were correct in their statutory arguments, and I would affirm the Court of Appeals because petitioners have failed to prove that Test 21 satisfies the applicable statutory standards.¹ All parties' arguments and

Page 258

both lower court decisions were based on Title VII standards. In this context, I think it wrong to focus on § 3304 to the exclusion of the Title VII standards, particularly because the Civil Service Commission views the job-relatedness standards of Title VII and § 3304 as identical.² See also Infra, at 263.

          In applying a Title VII test,³ both the District Court and the Court of Appeals held that respondents had offered sufficient evidence of discriminatory impact to shift to petitioners the burden of proving job relatedness. 348 F.Supp. 15, 16; 168 U.S.App.D.C. 42, 45-47, 512 F.2d 956, 959-961. The Court does not question these rulings, and the only issue before us is what petitioners were required to show and whether they carried their burden. The Court agrees with the District Court's conclusion that Test 21 was validated by a positive relationship between Test 21 scores and performance in police training courses. This result is based upon the Court's reading of the record, its interpretation of in-

Page 259

structions governing testing practices issued by the Civil Service Commission (CSC), and "the current views of the Civil Service Commissioners who were parties to the case." We are also assured that today's result is not foreclosed by Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and Albermarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Finally, the Court asserts that its conclusion is "the much more sensible construction of the job relatedness requirement." Ante, at 251.

          But the CSC instructions cited by the Court do not support the District Court's conclusion. More importantly, the brief filed in this Court by the CSC takes the position that petitioners did not satisfy the burden of proof imposed by the CSC guidelines. It also appears that longstanding regulations of the Equal Employment Opportunity Commission (EEOC) previously endorsed by this Court require a result contrary to that reached by the Court. Furthermore, the Court's conclusion is inconsistent with my understanding of the interpretation of Title VII in Griggs and Albemarle. I do not find this conclusion "much more sensible" and with all respect I suggest that today's decision has the potential of significantly weakening statutory safeguards against discrimination in employment.

          On October 12, 1972, the CSC issued a supplement to the Federal Personnel Manual containing instructions for compliance with its general regulations concerning employment practices.⁴ The provision cited by the Court

Page 260

requires that Test 21 "have a demonstrable and rational relationship to important job-related performance objectives identified by management." "Success in training" is one example of a possible objective. The statistical correlation established by the Futransky validity study, Ante, at 251 n. 17, was between applicants' scores on Test 21 and recruits' average scores on final examinations given during the police training course.

          It is hornbook law that the Court accord deference to the construction of an administrative regulation when that construction is made by the administrative authority responsible for the regulation. E. g., Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616, 625 (1965). It is worthy of note, therefore, that the brief filed by the CSC in this case interprets the instructions in a manner directly contrary to the Court, despite the Court's claim that its result is supported by the Commissioners' "current views."

          "Under Civil Service Commission regulations and current professional standards governing criterion-related test validation procedures, the job-relatedness of an entrance examination may be demonstrated by proof that scores on the examination predict properly measured success in job-relevant training (regardless of whether they predict success on the job itself).

          "The documentary evidence submitted in the district court demonstrates that scores on Test 21 are predictive of Recruit School Final Averages. There

Page 261

          is little evidence, however, concerning the relationship between the Recruit School tests and the substance of the training program, and between the substance of the training program and the post-training job of a police officer. It cannot be determined, therefore, whether the Recruit School Final Averages are a proper measure of success in training and whether the training program is job-relevant." Brief for CSC 14-15 (emphasis added).

          The CSC maintains that a positive correlation between scores on entrance examinations and the criterion of success in training may establish the job relatedness of an entrance test thus relieving an employer from the burden of providing a relationship to job performance after training but only subject to certain limitations.

          "Proof that scores on an entrance examination predict scores on training school achievement tests, however, does not, by itself, satisfy the burden of demonstrating the job-relatedness of the entrance examination. There must also be evidence the nature of which will depend on the particular circumstances of the case showing that the achievement test scores are an appropriate measure of the trainee's mastery of the material taught in the training program and that the training program imparts to a new employee knowledge, skills, or abilities required for performance of the post-training job." Id., at 24-25.

          Applying its standards ⁵ the CSC concludes that none of

Page 262

the evidence presented in the District Court established "the appropriateness of using Recruit School Final Averages as the measure of training performance or the relationship of the Recruit School program to the job of a police officer." Id., at 30.⁶

          The CSC's standards thus recognize that Test 21 can be validated by a correlation between Test 21 scores and recruits' averages on training examinations only if (1) the training averages predict job performance or (2) the averages are proved to measure performance in job-related training. There is no proof that the recruits' average is correlated with job performance after completion of training. See n. 10, Infra. And although a positive relationship to the recruits' average might be sufficient to validate Test 21 if the average were proved to reflect mastery of material on the training curriculum that was in turn demonstrated to be relevant to job performance, the record is devoid of proof in this regard. First, there is no demonstration by petitioners that the training-course examinations measure comprehension of the training curriculum; indeed, these examinations do not even appear in the record. Furthermore, the Futransky study simply designated an average of 85 on the

Page 263

examination as a "good" performance and assumed that a recruit with such an average learned the material taught in the training course.⁷ Without any further proof of the significance of a score of 85, and there is none in the record, I cannot agree that Test 21 is predictive of "success in training."

          Today's decision is also at odds with EEOC regulations issued pursuant to explicit authorization in Title VII, 42 U.S.C. § 2000e-12(a). Although the dispute in this case is not within the EEOC's jurisdiction, as I noted above, the proper construction of Title VII nevertheless is relevant. Moreover, the 1972 extension of Title VII to public employees gave the same substantive protection to those employees as had previously been accorded in the private sector, Morton v. Mancari, 417 U.S. 535, 546-547, 94 S.Ct. 2474, 2480-2481, 41 L.Ed.2d 290, 298-299 (1974), and it is therefore improper to maintain different standards in the public and private sectors. Chandler v. Roudebush, 425 U.S. 840, 864, 96 S.Ct. 1949, 1961, 48 L.Ed.2d 416, 433 (1976). See n. 2, Supra.

          As with an agency's regulations, the construction of a statute by the agency charged with its administration is entitled to great deference. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 210, 93 S.Ct. 364, 367, 34 L.Ed.2d 415, 419 (1972); Udall v. Tallman, 380 U.S., at 16, 85 S.Ct., at 801, 13 L.Ed.2d, at 625; Power Reactor Co. v. Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924, 932 (1961). The defer-

Page 264

ence due the pertinent EEOC regulations is enhanced by the fact that they were neither altered nor disapproved when Congress extensively amended Title VII in 1972.⁸ Chemehuevi Tribe of Indians v. FPC, 420 U.S. 395, 410, 95 S.Ct. 1066, 1075, 43 L.Ed.2d 279, 290 (1975); Cammarano v. United States, 358 U.S. 498, 510, 79 S.Ct. 524, 531, 3 L.Ed.2d 462, 470 (1959); Allen v. Grand Central Aircraft Co., 347 U.S. 535, 547, 74 S.Ct. 745, 752, 98 L.Ed. 933, 943 (1954); Massachusetts Mut. Life Ins. Co. v. United States, 288 U.S. 269, 273, 53 S.Ct. 337, 339, 77 L.Ed. 739, 742 (1933). These principles were followed in Albemarle where the Court explicitly endorsed various regulations no fewer than eight times in its opinion, 422 U.S., at 431-436, 95 S.Ct., at 2378-2381, 45 L.Ed.2d, at 304-307 ⁹ and Griggs, 401 U.S., at 433-434, 91 S.Ct., at 854-855, 28 L.Ed.2d, at 165-166.

          The EEOC regulations require that the validity of a job qualification test be proved by "empirical data demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated." 29 CFR § 1607.4(c) (1975). This construction of Title VII was approved in Albemarle, where we quoted this provision and remarked that "(t)he message of these Guidelines is the same as that of the Griggs case." 422 U.S., at 431, 95 S.Ct., at 2378, 45 L.Ed.2d, at 304. The regulations also set forth minimum standards for

Page 265

validation and delineate the criteria that may be used for this purpose.

          "The work behaviors or other criteria of employee adequacy which the test is intended to predict or identify must be fully described; and, additionally, in the case of rating techniques, the appraisal form(s) and instructions to the rater(s) must be included as a part of the validation evidence. Such criteria may include measures other than actual work proficiency, such as training time, supervisory ratings, regularity of attendance and tenure. Whatever criteria are used they must represent major or critical work behaviors as revealed by careful job analyses." 29 CFR § 1607.5(b)(3) (1975).

          This provision was also approved in Albemarle, 422 U.S., at 432, 95 S.Ct., at 2379, 45 L.Ed.2d, at 304, and n. 30.

          If we measure the validity of Test 21 by this standard, which I submit we are bound to do, petitioners' proof is deficient in a number of ways similar to those noted above. First, the criterion of final training examination averages does not appear to be "fully described." Although the record contains some general discussion of the training curriculum, the examinations are not in the record, and there is no other evidence completely elucidating the subject matter tested by the training examinations. Without this required description we cannot determine whether the correlation with training examination averages is sufficiently related to petitioners' need to ascertain "job-specific ability." See Albemarle, 422 U.S., at 433, 95 S.Ct., at 2379, 45 L.Ed.2d, at 305. Second, the EEOC regulations do not expressly permit validation by correlation to training performance, unlike the CSC instructions. Among the specified criteria the closest to training performance is "training time." All recruits to the Metropolitan Police Department, however, go through the

Page 266

same training course in the same amount of time, including those who experience some difficulty. See n. 7, supra. Third, the final requirement of § 1607.5(b)(3) has not been met. There has been no job analysis establishing the significance of scores on training examinations, nor is there any other type of evidence showing that these scores are of 'major or critical" importance.

          Accordingly, EEOC regulations that have previously been approved by the Court set forth a construction of Title VII that is distinctly opposed to today's statutory result.

          The Court also says that its conclusion is not foreclosed by Griggs and Albemarle, but today's result plainly conflicts with those cases. Griggs held that "(i)f an employment practice which operates to exclude Negroes cannot be shown to be Related to job performance, the practice is prohibited." 401 U.S., at 431, 91 S.Ct., at 853, 28 L.Ed.2d, at 164 (emphasis added). Once a discriminatory impact is shown, the employer carries the burden of proving that the challenged practice "bear(s) a Demonstrable relationship to successful performance of the jobs for which it was used." Ibid. (emphasis added). We observed further:

          "Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. . . . What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract." Id., at 436, 91 S.Ct., at 856, 28 L.Ed.2d, at 167.

          Albemarle read Griggs to require that a discriminatory test be validated through proof "by professionally acceptable methods" that it is " 'predictive of or signifi-

Page 267

cantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.' " 422 U.S., at 431, 95 S.Ct., at 2378, 45 L.Ed.2d, at 304 (emphasis added), quoting 29 CFR § 1607.4(c) (1975). Further, we rejected the employer's attempt to validate a written test by proving that it was related to supervisors' job performance ratings, because there was no demonstration that the ratings accurately reflected job performance. We were unable "to determine whether the criteria Actually considered were sufficiently related to the (employer's) legitimate interest in job-specific ability to justify a testing system with a racially discriminatory impact." 422 U.S., at 433, 95 S.Ct., at 2379, 45 L.Ed.2d, at 305 (emphasis in original). To me, therefore, these cases read Title VII as requiring proof of a significant relationship to job performance to establish the validity of a discriminatory test. See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 678 and n. 14 (1973). Petitioners do not maintain that there is a demonstrated correlation between Test 21 scores and job performance. Moreover, their validity study was unable to discern a significant positive relationship between training averages and job performance.¹⁰ Thus, there is no proof of a correlation either direct or indirect between Test 21 and performance of the job of being a police officer.

          It may well be that in some circumstances, proof of a relationship between a discriminatory qualification test and training performance is an acceptable substitute for establishing a relationship to job performance. But this question is not settled, and it should not be re-

Page 268

solved by the minimal analysis in the Court's opinion.¹¹ Moreover, it is particularly inappropriate to decide the question on this record. "Professionally acceptable methods" apparently recognize validation by proof of a correlation with training performance, rather than of performance, if (1) the training curriculum includes information proved to be important to job performance and (2) the standard used as a measure of training performance is shown to reflect the trainees' mastery of the material included in the training curriculum. See Brief for CSC 24-29; Brief for the Executive Committee of Division 14 of the American Psychological Assn. as Amicus Curiae 37-43. But no authority, whether professional, administrative, or judicial, has accepted the sufficiency of a correlation with training performance in the absence of such proof. For reasons that I have stated above, the record does not adequately establish either factor. As a result, the Court's conclusion cannot be squared with the focus on job performance in Griggs and Albemarle, even if this substitute showing is reconcilable with the holdings in those cases.

          Today's reduced emphasis on a relationship to job performance is also inconsistent with clearly expressed congressional intent. A section-by-section analysis of the 1972 amendments to Title VII states as follows:

          "In any area where the new law does not address itself, or in any areas where a specific contrary intention is not indicated, it was assumed that the present case law as developed by the courts would

Page 269

          continue to govern the applicability and construction of Title VII." 118 Cong.Rec. 7166 (1972).

          The pre-1972 judicial decisions dealing with standardized tests used as job qualification requirements uniformly follow the EEOC regulations discussed above and insist upon proof of a relationship to job performance to prove that a test is job related.¹² Furthermore, the Court ignores Congress' explicit hostility toward the use of written tests as job-qualification requirements; Congress disapproved the CSC's "use of general ability tests which are not aimed at any direct relationship to specific jobs." H.R.Rep. No. 92-238, p. 24 (1971). See S.Rep. No. 92-415, pp. 14-15 (1971). Petitioners concede that Test 21 was devised by the CSC for general use and was not designed to be used by police departments.

          Finally, it should be observed that every federal court, except the District Court in this case, presented with proof identical to that offered to validate Test 21 has reached a conclusion directly opposite to that of the

Page 270

Court today.¹³ Sound policy considerations support the view that, at a minimum, petitioners should have been required to prove that the police training examinations either measure job-related skills or predict job performance. Where employers try to validate written qualification tests by proving a correlation with written examinations in a training course, there is a substantial danger that people who have good verbal skills will achieve high scores on both tests due to verbal ability, rather than "job-specific ability." As a result, employers could validate any entrance examination that measures only verbal ability by giving another written test that measures verbal ability at the end of a training course. Any contention that the resulting correlation between examination scores would be evidence that the initial test is "job related" is plainly erroneous. It seems to me, however, that the Court's holding in this case can be read as endorsing this dubious proposition. Today's result will prove particularly unfortunate if it is extended to govern Title VII cases.

          Accordingly, accepting the Court's assertion that it is necessary to reach the statutory issue, I would hold that petitioners have not met their burden of proof and affirm the judgment of the Court of Appeals.

^{1. Under § 4-103 of the District of Columbia Code, appointments to the Metropolitan Police force were to be made by the Commissioner subject to the provisions of Title 5 of the United States Code relating to the classified civil service. The District of Columbia Council and the Office of Commissioner of the District of Columbia, established by Reorganization Plan No. 37 of 1967, were abolished as of January 2, 1975, and replaced by the Council of the District of Columbia and the Office of Mayor of the District of Columbia.}

^2. Title 42 U.S.C. § 1981 provides:

"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."

Section 1-320 of the District of Columbia Code (1973) provides:

"In any program of recruitment or hiring of individuals to fill positions in the government of the District of Columbia, no officer or employee of the government of the District of Columbia shall exclude or give preference to the residents of the District of Columbia or any State of the United States on the basis of residence, religion, race, color, or national origin."

One of the provisions expressly made applicable to the Metropolitan Police force by § 4-103 is 5 U.S.C. § 3304(a), which provides:

"s 3304. Competitive service; examinations.

"(a) The President may prescribe rules which shall provide, as nearly as conditions of good administration warrant, for

"(1) open, competitive examinations for testing applicants for appointment in the competitive service which are practical in character and as far as possible relate to matters that fairly test the relative capacity and fitness of the applicants for the appointment sought; and

"(2) noncompetitive examinations when competent applicants do not compete after notice has been given of the existence of the vacancy."

The complaint asserted no claim under § 3304.

^3. Those proceedings included a hearing on respondents' motion for an order designating the case as a class action. A ruling on the motion was held in abeyance and was never granted insofar as the record before us reveals.

^4. In support of the motion, petitioners and the federal parties urged that they were in compliance with all applicable constitutional, statutory, and regulatory provisions, including the provisions of the Civil Service Act which since 1883 were said to have established a "job relatedness" standard for employment.

^5. When summary judgment was granted, the case with respect to discriminatory promotions was still pending. The District Court, however, made the determination and direction authorized by Fed.Rule Civ.Proc. 54(b). The promotion issue was subsequently decided adversely to the original plaintiffs. Davis v. Washington, 352 F.Supp. 187 (DC 1972).

^6. "Although appellants' complaint did not allege a violation of Title VII of the Civil Rights Act of 1964, which then was inapplicable to the Federal Government, decisions applying Title VII furnish additional instruction as to the legal standard governing the issues raised in this case. . . . The many decisions disposing of employment discrimination claims on constitutional grounds have made no distinction between the constitutional standard and the statutory standard under Title VII." 168 U.S.App.D.C. 42, 44 n. 2, 512 F.2d 956, 958 n. 2 (1975).

^7. The Civil Service Commissioners, defendants in the District Court, did not petition for writ of certiorari but have filed a brief as respondents. See our Rule 21(4). We shall at times refer to them as the "federal parties."

^8. Apparently not disputing the applicability of the Griggs and Title VII standards in resolving this case, petitioners presented issues going only to whether Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), had been misapplied by the Court of Appeals.

^9. See, E. g., Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962); Carpenters v. United States, 330 U.S. 395, 412, 67 S.Ct. 775, 784, 91 L.Ed. 973, 987 (1947); Sibbach v. Wilson & Co., 312 U.S. 1, 16, 61 S.Ct. 422, 427, 85 L.Ed. 479, 486 (1941); Mahler v. Eby, 264 U.S. 32, 45, 44 S.Ct. 283, 288, 68 L.Ed. 549, 557 (1924); Weems v. United States, 217 U.S. 349, 362, 30 S.Ct. 544, 547, 54 L.Ed. 793, 796 (1910).

^10. Although Title VII standards have dominated this case, the statute was not applicable to federal employees when the complaint was filed; and although the 1972 amendments extending the Title to reach Government employees were adopted prior to the District Court's judgment, the complaint was not amended to state a claim under that Title, nor did the case thereafter proceed as a Title VII case. Respondents' motion for partial summary judgment, filed after the 1972 amendments, rested solely on constitutional grounds; and the Court of Appeals ruled that the motion should have been granted.

At the oral argument before this Court, when respondents' counsel was asked whether "this is just a purely Title VII case as it comes to us from the Court of Appeals without any constitutional overtones," counsel responded: "My trouble honestly with that proposition is the procedural requirements to get into court under Title VII, and this case has not met them." Tr. of Oral Arg. 66.

^11. To the extent that Palmer suggests a generally applicable proposition that legislative purpose is irrelevant in constitutional adjudication, our prior cases as indicated in the text are to the contrary; and very shortly after Palmer, all Members of the Court majority in that case joined the Court's opinion in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), which dealt with the issue of public financing for private schools and which announced, as the Court had several times before, that the validity of public aid to church-related schools includes close inquiry into the purpose of the challenged statute.

^12. Cases dealing with public employment include: Chance v. Board of Examiners, 458 F.2d 1167, 1176-1177 (CA2 1972); Castro v. Beecher, 459 F.2d 725, 732-733 (CA1 1972); Bridgeport Guardians v. Bridgeport Civil Service Comm'n, 482 F.2d 1333, 1337 (CA2 1973); Harper v. Mayor of Baltimore, 359 F.Supp. 1187, 1200 (D.Md.), aff'd in pertinent part Sub nom. Harper v. Kloster, 486 F.2d 1134 (CA4 1973); Douglas v. Hampton, 168 U.S.App.D.C. 62, 67, 512 F.2d 976, 981 (1975); but cf. Tyler v. Vickery, 517 F.2d 1089, 1096-1097 (CA5 1975), cert. pending, No. 75-1026. There are also District Court cases: Wade v. Mississippi Cooperative Extension Serv., 372 F.Supp. 126, 143 (ND Miss. 1974); Arnold v. Ballard, 390 F.Supp. 723, 736, 737 (N.D. Ohio 1975); United States v. City of Chicago, 385 F.Supp. 543, 553 (N.D. Ill. 1974); Fowler v. Schwarzwalder, 351 F.Supp. 721, 724 (D.Minn. 1972), rev'd on other grounds, 498 F.2d 143 (CA8 1974).

In other contexts there are Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (CA2 1968) (urban renewal); Kennedy Park Homes Assn. v. City of Lackawanna, 436 F.2d 108, 114 (CA2 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971) (zoning); Southern Alameda Spanish Speaking Organization v. Union City, 424 F.2d 291 (CA9 1970) (dictum) (zoning); Metropolitan H. D. Corp. v. Village of Arlington Heights, 517 F.2d 409 (CA7), cert. granted, December 15, 1975, 423 U.S. 1030, 96 S.Ct. 560, 46 L.Ed.2d 404 (1975) (zoning); Gautreaux v. Romney, 448 F.2d 731, 738 (CA7 1971) (dictum) (public housing); Crow v. Brown, 332 F.Supp. 382, 391 (N.D. Ga. 1971), aff'd, 457 F.2d 788 (CA5 1972) (public housing); Hawkins v. Town of Shaw, 437 F.2d 1286 (CA5 1971), aff'd on rehearing en banc, 461 F.2d 1171 (1972) (municipal services).

^13. It appears beyond doubt by now that there is no single method for appropriately validating employment tests for their relationship to job performance. Professional standards developed by the American Psychological Association in its Standards for Educational and Psychological Tests and Manuals (1966), accept three basic methods of validation: "empirical" or "criterion" validity (demonstrated by identifying criteria that indicate successful job performance and then correlating test scores and the criteria so identified); "construct" validity (demonstrated by examinations structured to measure the degree to which job applicants have identifiable characteristics that have been determined to be important in successful job performance); and "content" validity (demonstrated by tests whose content closely approximates tasks to be performed on the job by the applicant). These standards have been relied upon by the Equal Employment Opportunity Commission in fashioning its Guidelines on Employee Selection Procedures, 29 CFR pt. 1607 (1975), and have been judicially noted in cases where validation of employment tests has been in issue. See, E.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280, 304 (1975); Douglas v. Hampton, 168 U.S.App.D.C., at 70, 512 F.2d, at 984; Vulcan Society v. Civil Service Comm'n, 490 F.2d 387, 394 (CA2 1973).

^14. Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 60 Calif.L.Rev. 275, 300 (1972), suggests that disproportionate-impact analysis might invalidate "tests and qualifications for voting, draft deferment, public employment, jury service, and other government-conferred benefits and opportunities . . .; (s)ales taxes, bail schedules, utility rates, bridge tolls, license fees, and other state-imposed charges." It has also been argued that minimum wage and usury laws as well as professional licensing requirements would require major modifications in light of the unequal-impact rule. Silverman, Equal Protection, Economic Legislation, and Racial Discrimination, 25 Vand.L.Rev. 1183 (1972). See also Demsetz, Minorities in the Market Place, 43 N.C.L.Rev. 271 (1965).

^15. In their memorandum supporting their motion for summary judgment, the federal parties argued:

"In Griggs, supra, the Supreme Court set a job-relationship standard for the private sector employers which has been a standard for federal employment since the passage of the Civil Service Act in 1883. In that act Congress has mandated that the federal government must use '. . . examinations for testing applicants for appointment . . . which . . . as far as possible relate to matters that fairly test the relative capacity and fitness of the applicants for the appointments sought.' 5 U.S.C. § 3304(a)(1). Defendants contend that they have been following the job-related standards of Griggs, supra, for the past eighty-eight years by virtue of the enactment of the Civil Service Act which guaranteed open and fair competition for jobs."

They went on to argue that the Griggs standard had been satisfied. In granting the motions for summary judgment filed by petitioners and the federal parties, the District Court necessarily decided adversely to respondents the statutory issues expressly or tacitly tendered by the parties.

^16. See n. 17, Infra. Current instructions of the Civil Service Commission on "Examining, Testing, Standards, and Employment Practices" provide in pertinent part:

"S2-2 Use of applicant appraisal procedures

a. Policy. The Commission's staff develops and uses applicant appraisal procedures to assess the knowledges, skills, and abilities of persons for jobs and not persons in the abstract.

"(1) Appraisal procedures are designed to reflect real, reasonable, and necessary qualifications for effective job behavior.

"(2) An appraisal procedure must, among other requirements, have a demonstrable and rational relationship to important job-related performance objectives identified by management, such as:

"(a) Effective job performance;

"(b) Capability;

"(c) Success in training;

"(d) Reduced turnover; or

"(e) Job satisfaction." 37 Fed.Reg. 21557 (1972).

See also Equal Employment Opportunity Commission Guidelines on Employee Selection Procedures, 29 CFR § 1607.5(b)(3) (1975), discussed in Albemarle Paper Co. v. Moody, 422 U.S., at 430-435, 95 S.Ct. 2362, 2378-2380, 45 L.Ed.2d 280, 304-307.

^17. The record includes a validation study of Test 21's relationship to performance in the recruit training program. The study was made by D. L. Futransky of the Standards Division, Bureau of Policies and Standards, United States Civil Service Commission. App., at 99-109. Findings of the study included data "support(ing) the conclusion that T(est) 21 is effective in selecting trainees who can learn the material that is taught at the Recruit School." Id., at 103. Opinion evidence, submitted by qualified experts examining the Futransky study and/or conducting their own research, affirmed the correlation between scores on Test 21 and success in the training program. E. g., Affidavit of Dr. Donald J. Schwartz (personnel research psychologist, United States Civil Service Commission), App. 178, 183 ("It is my opinion . . . that Test 21 has a significant positive correlation with success in the MPD Recruit School for both Blacks and whites and is therefore shown to be job related . . ."); affidavit of Diane E. Wilson (personnel research psychologist, United States Civil Service Commission), App. 185, 186 ("It is my opinion that there is a direct and rational relationship between the content and difficulty of Test 21 and successful completion of recruit school training").

The Court of Appeals was "willing to assume for purposes of this appeal that appellees have shown that Test 21 is predictive of further progress in Recruit School." 168 U.S.App.D.C., at 48, 512 F.2d, at 962.

^* Specifically, I express no opinion on the merits of the cases listed in n. 12 of the Court's opinion.

^1. Although I do not intend to address the constitutional questions considered by the Court in Part II of its opinion, I feel constrained to comment upon the propriety of footnote 12, Ante, at 244-245. One of the cases "disapproved" therein is presently scheduled for plenary consideration by the Court in the 1976 Term, Metropolitan Housing Development Corp. v. Village of Arlington Heights, 517 F.2d 409 (CA7), cert. granted, 423 U.S. 1030, 96 S.Ct. 560, 46 L.Ed.2d 404 (1975). If the Court regarded this case only a few months ago as worthy of full briefing and argument, it ought not be effectively reversed merely by its inclusion in a laundry list of lower court decisions.

^2. The only administrative authority relied on by the Court in support of its result is a regulation of the Civil Service Commission construing the civil service employment standards in Title 5 of the United States Code. Ante, at 250-251 n. 16. I note, however, that 5 U.S.C. § 3304 was brought into this case by the CSC, not by respondents, and the CSC's only reason for referring to that provision was to establish that petitioners had been "following the job-related standards of Griggs (V. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971),) for the past eighty-eight years." Ante, at 249 n. 15.

^3. The provision in Title VII on which petitioners place principal reliance is 42 U.S.C. § 2000e-2(h). See Griggs v. Duke Power Co., supra, 401 U.S., at 433-436, 91 S.Ct., at 854-856, 28 L.Ed.2d, at 165-167.

^4. See 5 CFR § 300.101 Et seq. (1976). These instructions contain the "regulations" that the Court finds supportive of the District Court's conclusion, which was reached under Title VII, but neither the instructions nor the general regulations are an interpretation of Title VII. The instructions were issued "under authority of sections 3301 and 3302 of title 5, United States Code, and E.O. 10577, 3 CFR 1954-58 Comp., p. 218." 37 Fed.Reg. 21552 (1972). The pertinent regulations of the CSC in 5 CFR § 300.101 Et seq. were promulgated pursuant to the same authorities, as well as 5 U.S.C. §§ 7151, 7154 and Exec.Order No. 11478, 3 CFR (1966-1970 Comp.) 803.

^5. The CSC asserts that certain of its guidelines have some bearing on Test 21's job relatedness. Under the CSC instructions, " 'criterion-related' validity," see Douglas v. Hampton, 168 U.S.App.D.C. 62, 70 n. 60, 512 F.2d 976, 984 n. 60 (1975), can be established by demonstrating a correlation between entrance examination scores and "a criterion which is legitimately based on the needs of the Federal Government." P S3-2(a)(2), 37 Fed.Reg. 21558 (1972). Further, to prove validity, statistical studies must demonstrate that Test 21, "to a significant degree, measures performance or qualifications requirements which are relevant to the job or jobs for which candidates are being evaluated." P S3-3(a), 37 Fed.Reg. 21558 (1972). These provisions are ignored in the Court's opinion.

^6. On this basis, the CSC argues that the case ought to be remanded to enable petitioners to try to make such a demonstration, but this resolution seems to me inappropriate. Both lower courts recognized that petitioners had the burden of proof, and as this burden is yet unsatisfied, respondents are entitled to prevail.

^7. The finding in the Futransky study on which the Court relies, Ante, at 251 n. 17, was that Test 21 "is effective in selecting trainees who can learn the material that is taught at the Recruit School," because it predicts averages over 85. On its face, this would appear to be an important finding, but the fact is that Everyone learns the material included in the training course. The study noted that all recruits pass the training examinations; if a particular recruit has any difficulty, he is given assistance until he passes.

^8. Still another factor mandates deference to the EEOC regulations. The House and Senate committees considering the 1972 amendments to Title VII recognized that discrimination in employment, including the use of testing devices, is a "complex and pervasive phenomenon." S.Rep. No. 92-415, p. 5 (1971); H.R.Rep. No. 92-238, p. 8 (1971); U.S.Code Cong. & Admin.News 1972, p. 2137. As a result, both committees noted the need to obtain "expert assistance" in this area. S.Rep. No. 92-415, Supra, at 5; H.R.Rep. No. 92-238, Supra, at 8.

^9. Indeed, two Justices asserted that the Court relied too heavily on the EEOC guidelines. 422 U.S. 449, 95 S.Ct. 2389, 45 L.Ed.2d 316 (Blackmun, J., concurring in judgment); Id., at 451, 95 S.Ct., at 2387, 45 L.Ed.2d, at 317 (Burger, C. J., concurring in part and dissenting in part).

^10. Although the validity study found that Test 21 predicted job performance for white officers, but see Albemarle, 422 U.S., at 433, 95 S.Ct., at 2379, 45 L.Ed.2d, at 305, no similar relationship existed for black officers. The same finding was made as to the relationship between training examination averages and job performance. See Id., at 435, 95 S.Ct., at 2380, 45 L.Ed.2d, at 306.

^11. The Court of Appeals recognized that deciding whether 42 U.S.C. § 2000e-2(h) permitted such proof "is not a simple or insignificant endeavor." 168 U.S.App.D.C. 42, 50 n. 59, 512 F.2d 956, 964 n. 59. The court declined to express any view on this issue on the ground that petitioners had not satisfied this standard even if it were acceptable, which seems to me the proper treatment of the question.

^12. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); United States v. Jacksonville Terminal Co., 451 F.2d 418, 456-457 (CA5 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972); Hicks v. Crown Zellerbach Corp., 319 F.Supp. 314, 319-321 (E.D.La.1970) (issuing preliminary injunction), 321 F.Supp. 1241, 1244 (1971) (issuing permanent injunction). See also Castro v. Beecher, 334 F.Supp. 930 (D.Mass.1971), aff'd in part and rev'd in part on other grounds, 459 F.2d 725 (CA1 1972); Western Addition Community Org. v. Alioto, 330 F.Supp. 536, 539-540 (N.D.Cal.1971), 340 F.Supp. 1351, 1354-1356 (1972) (issuing preliminary injunction), 360 F.Supp. 733 (1973) (issuing permanent injunction); Chance v. Board of Examiners, 330 F.Supp. 203 (S.D.N.Y.1971), aff'd, 458 F.2d 1167 (CA2 1972); Baker v. Columbus Mun. Sep. School Dist., 329 F.Supp. 706, 721-722 (N.D.Miss.1971), aff'd, 462 F.2d 1112 (CA5 1972); Arrington v. Massachusetts Bay Transp. Auth., 306 F.Supp. 1355 (D.Mass.1969).

^13. United States v. City of Chicago, 385 F.Supp. 543, 555-556 (N.D.Ill.1974) (police department); Officers for Justice v. CSC, 371 F.Supp. 1328, 1337 (N.D.Cal.1973) (police department); Smith v. City of East Cleveland, 363 F.Supp. 1131, 1148-1149 (N.D.Ohio 1973) (police department), aff'd in part and rev'd in part on other grounds, 520 F.2d 492 (CA6 1975); Harper v. Mayor of Baltimore, 359 F.Supp. 1187, 1202-1203 (D.Md.) (fire department), modified and aff'd, 486 F.2d 1134 (CA4 1973); Pennsylvania v. O'Neill, 348 F.Supp. 1084, 1090-1091 (E.D.Pa.1972) (police department), aff'd in pertinent part and vacated in part, 473 F.2d 1029 (CA3 1973).

          Syllabus

          Respondents brought this class action, alleging that the Detroit public school system is racially segregated as a result of the official policies and actions of petitioner state and city officials, and seeking implementation of a plan to eliminate the segregation and establish a unitary nonracial school system. The District Court, after concluding that various acts by the petitioner Detroit Board of Education had created and perpetuated school segregation in Detroit, and that the acts of the Board, as a subordinate entity of the State, were attributable to the State, ordered the Board to submit Detroit-only desegregation plans. The court also ordered the state officials to submit desegregation plans encompassing the three-county metropolitan area, despite the fact that the 85 outlying school districts in these three counties were not parties to the action and there was no claim that they had committed constitutional violations. Subsequently, outlying school districts were allowed to intervene, but were not permitted to assert any claim or defense on issues previously adjudicated or to reopen any issue previously decided, but were allowed merely to advise the court as to the propriety of a metropolitan plan and to submit any objections, modifications, or alternatives to any such plan. Thereafter, the District Court ruled that it was proper to consider metropolitan plans that Detroit-only plans submitted by the Board and respondents were inadequate to accomplish desegregation, and that therefore it would seek a solution beyond the limits of the Detroit School District, and concluded that '(s)chool district lines are simply matters of political convenience and may not be used to deny constitutional rights.' Without having evidence that the suburban school districts had committed acts of de jure segregation, the court appointed a panel to submit a plan for the

Page 718

Detroit schools that would encompass an entire designated desegregation area consisting of 53 of the 85 suburban school districts plus Detroit, and ordered the Detroit Board to acquire at least 295 school buses to provide transportation under an interim plan to be developed for the 1972—1973 school year. The Court of Appeals, affirming in part, held that the record supported the District Court's finding as to the constitutional violations committed by the Detroit Board and the state officials; that therefore the District Court was authorized and required to take effective measures to desegregate the Detroit school system; and that a metropolitan area plan embracing the 53 outlying districts was the only feasible solution and was within the District Court's equity powers. But the court remanded so that all suburban school districts that might be affected by a metropolitan remedy could be made parties and have an opportunity to be heard as to the scope and implementation of such a remedy, and vacated the order as to the bus acquisitions, subject to its reimposition at an appropriate time. Held: The relief ordered by the District Court and affirmed by the Court of Appeals was based upon erroneous standards and was unsupported by record evidence that acts of the outlying districts had any impact on the discrimination found to exist in the Detroit schools. A federal court may not impose a multidistrict, areawide remedy for single-district de jure school segregation violations, where there is no finding that the other included school districts have failed to operate unitary school systems or have committed acts that effected segregation within the other districts, there is no claim or finding that the school district boundary lines were established with the purpose of fostering racial segregation, and there is no meaningful opportunity for the included neighboring school districts to present evidence or be heard on the propriety of a multidistrict remedy or on the question of constitutional violations by those districts. Pp. 737—753.

          (a) The District Court erred in using as a standard the declared objective of development of a metropolitan area plan which, upon implementation, would leave 'no school, grade or classroom . . . substantially disproportionate to the overall pupil racial composition' of the metropolitan area as a whole. The clear import of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, is that desegregation, in the sense of dismantling a dual school system, does not require any particular racial balance. Pp. 739—741.

Page 719

          (b) While boundary lines may be bridged in circumstances where there has been a constitutional violation calling for inter-district relief, school district lines may not be casually ignored or treated as a mere administrative convenience; substantial local control of public education in this country is a deeply rooted tradition. Pp. 741—742.

          (c) The interdistrict remedy could extensively disrupt and alter the structure of public education in Michigan, since that remedy would require, in effect, consolidation of 54 independent school districts historically administered as separate governmental units into a vast new super school district, and, since—entirely apart from the logistical problems attending large-scale transportation of students—the consolidation would generate other problems in the administration, financing, and operation of this new school system. Pp. 742—743.

          (d) From the scope of the interdistrict plan itself, absent a complete restructuring of the Michigan school district laws, the District Court would become, first, a de facto 'legislative authority' to resolve the complex operational problems involved and thereafter a 'school superintendent' for the entire area, a task which few, if any, judges are qualified to perform and one which would deprive the people of local control of schools through elected school boards. Pp. 743—744.

          (e) Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must be first shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district; i.e., specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. Pp. 744—745.

          (f) With no showing of significant violation by the 53 outlying school districts and no evidence of any interdistrict violation or effect, the District Court transcended the original theory of the case as framed by the pleadings, and mandated a metropolitan area remedy, the approval of which would impose on the outlying districts, not shown to have committed any constitutional violation, a standard not previously hinted at in any holding of this Court. P. 745.

          (g) Assuming, arguendo, that the State was derivatively responsible for Detroit's segregated school conditions, it does not follow

Page 720

that an interdistrict remedy is constitutionally justified or required, since there has been virtually no showing that either the State or any of the 85 outlying districts engaged in any activity that had a cross-district effect. Pp. 748—749.

          (h) An isolated instance of a possible segregative effect as between two of the school districts involved would not justify the broad metropolitanwide remedy contemplated, particularly since that remedy embraced 52 districts having no responsibility for the arrangement and potentially involved 503,000 pupils in addition to Detroit's 276,000 pupils. Pp. 749—750.

          484 F.2d 215, reversed and remanded.

          Frank J. Kelley, Lansing, Mich., for petitioners William G. Milliken et al.

          William M. Saxton, Detroit, Mich., for petitioners Allen Park Public Schools and Grosse Pointe Public School System et al.

Page 721

          Solicitor Gen. Robert H. Bork for the United States, as amicus curiae, by special leave of Court.

          J. Harold Flannery, Cambridge, Mass., and Nathaniel R. Jones, New York City, for respondents.

           Mr. Chief Justice BURGER delivered the opinion of the Court.

          We granted certiorari in these consolidated cases to determine whether a federal court may impose a multidistrict, areawide remedy to a single-district de jure segregation problem absent any finding that the other included school districts have failed to operate unitary school systems within their districts, absent any claim or finding that the boundary lines of any affected school district were established with the purpose of fostering racial segregation in public schools, absent any finding that the included districts committed acts which effected segregation within the other districts, and absent a

Page 722

meaningful opportunity for the included neighboring school districts to present evidence or be heard on the propriety of a multidistrict remedy or on the question of constitutional violations by those neighboring districts.¹

          The action was commenced in August 1970 by the respondents, the Detroit Branch of the National Association for the Advancement of Colored People² and individual parents and students, on behalf of a class later defined by order of the United States District Court for the Eastern District of Michigan, dated February 16, 1971, to included 'all school children in the City of Detroit, Michigan, and all Detroit resident parents who have children of school age.' The named defendants in the District Court included the Governor of Michigan, the Attorney General, the State Board of Education, the State Superintendent of Public Instruction, the Board of Education of the city of Detroit, its members, the city's and its former superintendent of schools. The State of Michigan as such is not a party to this litigation and references to the State must be read as references to the public officials, state and local, through whom the State is alleged to have acted. In their complaint respondents attacked the constitutionality of a statute of the State of Michigan known as Act 48 of the 1970 Legislature on the ground that it put the State of Michigan in the position of unconstitutionally interfering with the execution and operation of a voluntary plan of partial high school desegregation, known as the April 7, 1970, Plan, which had been adopted by the Detroit Board of Education to be effective beginning

Page 723

with the fall 1970 semester. The complaint also alleged that the Detroit Public School System was and is segregated on the basis of race as a result of the official policies and actions of the defendants and their predecessors in office, and called for the implementation of a plan that would eliminate 'the racial identity of every school in the (Detroit) system and . . . maintain now and hereafter a unitary, nonracial school system.'

          Initially the matter was tried on respondents' motion for a preliminary injunction to restrain in enforcement of Act 48 so as to permit the April 7 Plan to be implemented. On that issue, the District Court ruled that respondents were not entitled to a preliminary injunction since at that stage there was no proof that Detroit had a dual segregated school system. On appeal, the Court of Appeals found that the 'implementation of the April 7 plan was (unconstitutionally) thwarted by State action in the form of the Act of the Legislature of Michigan,' 433 F.2d 897, 902 (CA6 1970), and that such action could not be interposed to delay, obstruct, or nullify steps lawfully taken for the purpose of protecting rights guaranteed by the Fourteenth Amendment. The case was remanded to the District Court for an expedited trial on the merits.

          On remand, the respondents moved for immediate implementation of the April 7 Plan in order to remedy the deprivation of the claimed constitutional rights. In response, the School Board suggested two other plans, along with the April 7 Plan, and urged that top priority be assigned to the so-called 'Magnet Plan' which was 'designed to attract children to a school because of its superior curriculum.' The District Court approved the Board's Magnet Plan, and respondents again appealed to the Court of Appeals, moving for summary reversal. The Court of Appeals refused to pass on the merits of the Magnet Plan and ruled that the District Court had

Page 724

not abused its discretion in refusing to adopt the April 7 Plan without an evidentiary hearing. The case was again remanded with instructions to proceed immediately to a trial on the merits of respondents' substantive allegations concerning the Detroit school system. 438 F.2d 945 (CA6 1971).

          The trial of the issue of segregation in the Detroit school system began on April 6, 1971, and continued through July 22, 1971, consuming some 41 trial days. On September 27, 1971, the District Court issued its findings and conclusions on the issue of segregation, finding that 'Governmental actions and inaction at all levels, federal, state and local, have combined, with those of private organizations, such as loaning institutions and real estate associations and brokerage firms, to establish and to maintain the pattern of residential segregation throughout the Detroit metropolitan area.' 338 F.Supp. 582, 587 (ED Mich.1971). While still addressing a Detroit-only violation, the District Court reasoned:

          'While it would be unfair to charge the present defendants with what other governmental officers or agencies have done, it can be said that the actions or the failure to act by the responsible school authorities, both city and state, were linked to that of these other governmental units. When we speak of governmental action we should not view the different agencies as a collection of unrelated units. Perhaps the most that can be said is that all of them, including the school authorities, are, in part, responsible for the segregated condition which exists. And we note that just as there is an interaction between residential patterns and the racial composition of the schools, so there is a corresponding effect on the residential pattern by the racial composition of the schools.' Ibid.

Page 725

          The District Court found that the Detroit Board of Education created and maintained optional attendance zones³ within Detroit neighborhoods undergoing racial transition and between high school attendance areas of opposite predominant racial compositions. These zones, the court found, had the 'natural, probable, foreseeable and actual effect' of allowing white pupils to escape identifiably Negro schools. Ibid. Similarly, the District Court found that Detroit school attendance zones had been drawn along north-south boundary lines despite the Detroit Board's awareness that drawing boundary lines in an east-west direction would result in significantly greater desegregation. Again, the District Court concluded, the natural and actual effect of these acts was the creation and perpetuation of school segregation within Detroit.

          The District Court found that in the operation of its school transportation program, which was designed to relieve overcrowding, the Detroit Board had admittedly bused Negro Detroit pupils to predominantly Negro schools which were beyond or away from closer white schools with available space.⁴ This practice was found to have continued in recent years despite the Detroit Board's avowed policy, adopted in 1967, of utilizing transportation to increase desegregation:

          'With one exception (necessitated by the burning of a white school), defendant Board has never bused

Page 726

          white children to predominantly black schools. The Board has not bused white pupils to black schools despite the enormous amount of space available in inner-city schools. There were 22,961 vacant seats in schools 90% or more black.' Id., at 588.

          With respect to the Detroit Board of Education's practices in school construction, the District Court found that Detroit school construction generally tended to have a segregative effect with the great majority of schools being built in either overwhelmingly all-Negro or all-white neighborhoods so that the new schools opened as predominantly one-race schools. Thus, of the 14 schools which opened for use in 1970—1971, 11 opened over 90% Negro and one opened less than 10% Negro.

          The District Court also found that the State of Michigan had committed several constitutional violations with respect to the exercise of its general responsibility for, and supervision of, public education.⁵ The State, for example, was found to have failed, until the 1971 Session of the Michigan Legislature, to provide authorization or

Page 727

funds for the transportation of pupils within Detroit regardless of their poverty or distance from the school to which they were assigned; during this same period the State provided many neighboring, mostly white, suburban districts the full range of state-supported transportation.

          The District Court found that the State, through Act 48, acted to 'impede, delay and minimize racial integration in Detroit schools.' The first sentence of § 12 of Act 48 was designed to delay the April 7, 1970, desegregation plan originally adopted by the Detroit Board. The remainder of § 12 sought to prescribe for each school in the eight districts criteria of 'free choice' and 'neighborhood schools,' which, the District Court found, 'had as their purpose and effect the maintenance of segregation.' 338 F.Supp., at 589.⁶

          The District Court also held that the acts of the Detroit Board of Education, as a subordinate entity of the State, were attributable to the State of Michigan, thus creating a vicarious liability on the part of the State. Under Michigan law, Mich.Comp.Laws § 388.851 (1970), for example, school building construction plans had to be approved by the State Board of Education, and, prior to 1962, the State Board had specific statutory authority to supervise school-site selection. The proofs concerning the effect of Detroit's school construction program were,

Page 728

therefore, found to be largely applicable to show state responsibility for the segregative results.⁷

          Turning to the question of an appropriate remedy for these several constitutional violations, the District Court deferred a pending motion⁸ by intervening parent de-

Page 729

fendants to join as additional parties defendant the 85 outlying school districts in the three-county Detroit metropolitan area on the ground that effective relief could not be achieved without their presence. ⁹ The District Court concluded that this motion to join was 'premature,' since it 'has to do with relief' and no reasonably specific desegregation plan was before the court. 338 F.Supp., at 595. Accordingly, the District Court proceeded to order the Detroit Board of Education to submit desegregation plans limited to the segregation problems found to be existing within the city of Detroit. At the same time, however, the state defendants were directed to submit desegregation plans encompassing the three-county metropolitan area ¹⁰ despite the fact that the 85 outlying school

Page 730

districts of these three counties were not parties to the action and despite the fact that there had been no claim that these outlying districts had committed constitutional violations.¹¹ An effort to appeal these orders to the Court of Appeals was dismissed on the ground that the orders were not appealable. 468 F.2d 902 (CA6), cert. denied, 409 U.S. 844, 93 S.Ct. 45, 34 L.Ed.2d 83 (1972). The sequence of the ensuing actions and orders of the District Court are significant factors and will therefore be catalogued in some detail.

          Following the District Court's abrupt announcement that it planned to consider the implementation of a multidistrict, metropolitan area remedy to the segregation problems identified within the city of Detroit, the District Court was again requested to grant the outlying school districts intervention as of right on the ground that the District Court's new request for multidistrict plans 'may, as a practical matter, impair or impede (the intervenors') ability to protect' the welfare of their students. The District Court took the motions to intervene under advisement pending submission of the requested desegregation plans by Detroit and the state officials. On March 7, 1972, the District Court notified all parties and the petitioner school districts seeking intervention, that March 14, 1972, was the deadline for submission of recommendations for conditions of intervention and the

Page 731

date of the commencement of hearings on Detroit-only desegregation plans. On the second day of the scheduled hearings, March 15, 1972, the District Court granted the motions of the intervenor school districts¹² subject, inter alia, to the following conditions:

          '1. No intervenor will be permitted to assert any claim or defense previously adjudicated by the court.

          '2. No intervenor shall reopen any question or issue which has previously been decided by the court.

          '7. New intervenors are granted intervention for two principal purposes: (a) To advise the court, by brief, of the legal propriety or impropriety of considering a metropolitan plan; (b) To review any plan or plans for the desegregation of the so-called larger Detroit Metropolitan area, and submitting objections, modifications or alternatives to it or them, and in accordance with the requirements of the United States Constitution and the prior orders of this court.' 1 Joint Appendix 206 (hereinafter App.).

          Upon granting the motion to intervene, on March 15, 1972, the District Court advised the petitioning intervenors that the court had previously set March 22, 1972, as the date for the filing of briefs on the legal propriety of a 'metropolitan' plan of desegregation and, accordingly, that the intervening school districts would have one week to muster their legal arguments on the issue.¹³

Page 732

Thereafter, and following the completion of hearings on the Detroit-only desegregation plans, the District Court issued the four rulings that were the principal issues in the Court of Appeals.

          (a) On March 24, 1972, two days after the intervenors' briefs were due, the District Court issued its ruling on the question of whether it could 'consider relief in the form of a metropolitan plan, encompassing not only the City of Detroit, but the larger Detroit metropolitan area.' It rejected the state defendants' arguments that no state action caused the segregation of the Detroit schools, and the intervening suburban districts' contention that interdistrict relief was inappropriate unless the suburban districts themselves had committed violations. The court concluded:

          '(I)t is proper for the court to consider metropolitan plans directed toward the desegregation of the Detroit public schools as an alternative to the present intra-city desegregation plans before it and, in the event that the court finds such intra-city plans inadequate to desegregate such schools, the court is of the opinion that it is required to consider a metropolitan remedy for desegregation.' Pet.App. 51a.

          (b) On March 28, 1972, the District Court issued its findings and conclusions on the three Detroit-only plans submitted by the city Board and the respondents. It found that the best of the three plans 'would make the Detroit school system more identifiably Black . . . thereby increasing the flight of Whites from the city and the system.' Id., at 55a. From this the court concluded that the plan 'would not accomplish desegregation . . . within the corporate geographical limits of the city.' Id., at 56a. Accordingly, the District Court held that it 'must look beyond the limits of the Detroit school

Page 733

district for a solution to the problem,' and that '(s)chool district lines are simply matters of political convenience and may not be used to deny constitutional rights.' Id., at 57a.

          (c) During the period from March 28 to April 14, 1972, the District Court conducted hearings on a metropolitan plan. Counsel for the petitioning intervenors was allowed to participate in these hearings, but he was ordered to confine his argument to 'the size and expanse of the metropolitan plan' without addressing the intervenors' opposition to such a remedy or the claim that a finding of a constitutional violation by the intervenor districts was an essential predicate to any remedy involving them. Thereafter, on June 14, 1972, the District Court issued its ruling on the 'desegregation area' and related findings and conclusions. The court acknowledged at the outset that it had 'taken no proofs with respect to the establishment of the boundaries of the 86 public school districts in the counties (in the Detroit area), nor on the issue of whether, with the exclusion of the city of Detroit school districts, such school districts have committed acts of de jure segregation.' Nevertheless, the court designated 53 of the 85 suburban school districts plus Detroit as the 'desegregation area' and appointed a panel to prepare and submit 'an effective desegregation plan' for the Detroit schools that would encompass the entire desegregation area.¹⁴ The plan was to be based on 15 clusters, each containing part of the Detroit system and two or more suburban districts,

Page 734

and was to 'achieve the greatest degree of actual desegregation to the end that, upon implementation, no school, grade or classroom (would be) substantially disproportionate to the overall pupil racial composition.' 345 F.Supp. 914, 918 (ED Mich.1972).

          (d) On July 11, 1972, and in accordance with a recommendation by the court-appointed desegregation panel, the District Court ordered the Detroit Board of Education to purchase or lease 'at least' 295 school buses for the purpose of providing transportation under an interim plan to be developed for the 1972 1973 school year. The costs of this acquisition were to be borne by the state defendants. Pet.App. 106a—107a.

          On June 12, 1973, a divided Court of Appeals, sitting en banc, affirmed in part, vacated in part, and remanded for further proceedings. 484 F.2d 215 (CA6).¹⁵ The Court of Appeals held, first, that the record supported the District Court's findings and conclusions on the constitutional violations committed by the Detroit Board, id., at 221—238, and by the state defendants, id., at 239—241.¹⁶ It stated that the acts of racial discrimina-

Page 735

tion shown in the record are 'causally related to the substantial amount of segregation found in the Detroit school system,' id., at 241, and that 'the District Court was therefore authorized and required to take effective measures to desegregate the Detroit Public School System.' Id., at 242.

          The Court of Appeals also agreed with the District Court that 'any less comprehensive a solution than a metropolitan area plan would result in an all black school system immediately surrounded by practically all white suburban school systems, with an overwhelmingly white majority population in the total metropolitan area.' Id., at 245. The court went on to state that it could '(not) see how such segregation can be any less harmful to the minority students than if the same result were accomplished within one school district.' Ibid.

          Accordingly, the Court of Appeals concluded that 'the only feasible desegregation plan involves the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts for the limited purpose of providing an effective desegregation plan.' Id., It reasoned that such a plan would be appropriate because of the State's violations, and could be implemented because of the State's authority to control local school districts. Without further elaboration, and without any discussion of the claims that no constitutional violation by the outlying districts had been

Page 736

shown and that no evidence on that point had been allowed, the Court of Appeals held:

          '(T)he State has committed de jure acts of segregation and . . . the State controls the instrumentalities whose action is necessary to remedy the harmful effects of the State acts.' Ibid.

          An interdistrict remedy was thus held to be 'within the equity powers of the District Court.' Id., at 250.¹⁷

          The Court of Appeals expressed no views on the propriety of the District Court's composition of the metropolitan 'desegregation area.' It held that all suburban school districts that might be affected by any metropolitanwide remedy should, under Fed.Rule Civ.Proc. 19, be made parties to the case on remand and be given an opportunity to be heard with respect to the scope and implementation of such a remedy. 484 F.2d, at 251—252. Under the terms of the remand, however, the District Court was not 'required' to receive further evidence on the issue of segregation in the Detroit schools or on the propriety of a Detroit-only remedy, or on the question of whether the affected districts had committed any violation of the constitutional rights of Detroit pupils or others. Id., at 252. Finally, the Court of Appeals vacated the District Court's order directing the acquisition of school buses, subject to the right of the District Court to consider reimposing the order 'at the appropriate time.' Ibid.

Page 737

          Ever since Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), judicial consideration of school desegregation cases has begun with the standard:

          '(I)n the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal.' Id., at 495, 74 S.Ct., at 692.

          This has been reaffirmed time and again as the meaning of the Constitution and the controlling rule of law.

          The target of the Brown holding was clear and forthright: the elimination of state-mandated or deliberately maintained dual school systems with certain schools for Negro pupils and others for white pupils. This duality and racial segregation were held to violate the Constitution in the cases subsequent to 1954, including particularly Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Raney v. Board of Education, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); Monroe v. Board of Comm'rs, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972); United States v. Scotland Neck City Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972).

          The Swann case, of course, dealt

          'with the problem of defining in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems and establish unitary systems at once.' 402 U.S., at 6, 91 S.Ct., at 1271.

          In Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II), the Court's first encounter with the problem of remedies in school desegregation cases, the Court noted:

          'In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Tra-

Page 738

          ditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.' Id., at 300, 75 S.Ct., at 756 (footnote omitted).

          In further refining the remedial process, Swann held, the task is to correct, by a balancing of the individual and collective interests, 'the condition that offends the Constitution.' A federal remedial power may be exercised 'only on the basis of a constitutional violation' and, '(a)s with any equity case, the nature of the violation determines the scope of the remedy.' 402 U.S., at 16, 91 S.Ct., at 1276.

          Proceeding from these basic principles, we first note that in the District Court the complainants sought a remedy aimed at the condition alleged to offend the Constitution—the segregation within the Detroit City School District. ¹⁸ The court acted on this theory of the case and in its initial ruling on the 'Desegregation Area' stated:

          'The task before this court, therefore, is now, and . . . has always been, now to desegregate the Detroit public schools.' 345 F.Supp., at 921.

          Thereafter, however, the District Court abruptly rejected the proposed Detroit-only plans on the ground that 'while (they) would provide a racial mix more in keeping with the Black-White proportions of the student population (they) would accentuate the racial identifiability of the

Page 739

(Detroit) district as a Black school system, and would not accomplish desegregation.' Pet.App., 56a. '(T)he racial composition of the student body is such,' said the court, 'that the plan's implementation would clearly make the entire Detroit public school system racially identifiable' (Id., at 54a), 'leav(ing) many of its schools 75 to 90 per cent Black.' Id., at 55a. Consequently, the court reasoned, it was imperative to 'look beyond the limits of the Detroit school district for a solution to the problem of segregation in the Detroit public schools . . .' since '(s)chool district lines are simply matters of political convenience and may not be used to deny constitutional rights.' Id., at 57a. Accordingly, the District Court proceeded to redefine the relevant area to include areas of predominantly white pupil population in order to ensure that 'upon implementation, no school, grade or classroom (would be) substantially disproportionate to the overall pupil racial composition' of the entire metropolitan area.

          While specifically acknowledging that the District Court's findings of a condition of segregation were limited to Detroit, the Court of Appeals approved the use of a metropolitan remedy largely on the grounds that it is

          'impossible to declare 'clearly erroneous' the District Judge's conclusion that any Detroit only segregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a State in which the racial composition is 87 per cent white and 13 per cent black.' 484 F.2d, at 249.

          Viewing the record as a whole, it seems clear that the District Court and the Court of Appeals shifted the pri-

Page 740

mary focus from a Detroit remedy to the metropolitan area only because of their conclusion that total desegregation of Detroit would not produce the racial balance which they perceived as desirable. Both courts proceeded on an assumption that the Detroit schools could not be truly desegregated—in their view of what constituted desegregation—unless the racial composition of the student body of each school substantially reflected the racial composition of the population of the metropolitan area as a whole. The metropolitan area was then defined as Detroit plus 53 of the outlying school districts. That this was the approach the District Court expressly and frankly employed is shown by the order which expressed the court's view of the constitutional standard:

          'Within the limitations of reasonable travel time and distance factors, pupil reassignments shall be effected within the clusters described in Exhibit P.M. 12 so as to achieve the greatest degree of actual desegregation to the end that, upon implementation, no school, grade or classroom (will be) substantially disproportionate to the overall pupil racial composition.' 345 F.Supp., st 918 (emphasis added).

          In Swann, which arose in the context of a single independent school district, the Court held:

          'If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse.' 402 U.S., at 24, 91 S.Ct., at 1280.

          The clear import of this language from Swann is that desegregation, in the sense of dismantling a dual school system, does not require any particular racial balance in

Page 741

each 'school, grade or classroom.'¹⁹ See Spencer v. Kugler, 404 U.S. 1027, 92 S.Ct. 707, 30 L.Ed.2d 723 (1972).

          Here the District Court's approach to what constituted 'actual desegregation' raises the fundamental question, not presented in Swann, as to the circumstances in which a federal court may order desegregation relief that embraces more than a single school district. The court's analytical starting point was its conclusion that school district lines are no more than arbitrary lines on a map drawn 'for political convenience.' Boundary lines may be bridged where there has been a constitutional violation calling for interdistrict relief, but the nation that school district lines may be casually ignored or treated as a mere administrative convenience is contrary to the history of public education in our country. No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to

Page 742

quality of the educational process. See Wright v. Council of the City of Emporia, 407 U.S., at 469, 92 S.Ct., at 2206. Thus, in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 50, 93 S.Ct. 1278, 1305, 36 L.Ed.2d 16 (1973), we observed that local control over the educational process affords citizens an opportunity to participate in decision-making, permits the structuring of school programs to fit local needs, and encourages 'experimentation, innovation, and a healthy competition for educational excellence.'

          The Michigan educational structure involved in this case, in common with most States, provides for a large measure of local control,²⁰ and a review of the scope and character of these local powers indicates the extent to which the interdistrict remedy approved by the two courts could disrupt and alter the structure of public edu-

Page 743

cation in Michigan. The metropolitan remedy would require, in effect, consolidation of 54 independent school districts historically administered as separate units into a vast new super school district. See n. 10, supra. Entirely apart from the logistical and other serious problems attending large-scale transportation of students, the consolidation would give rise to an array of other problems in financing and operating this new school system. Some of the more obvious questions would be: What would be the status and authority of the present popularly elected school boards? Would the children of Detroit be within the jurisdiction and operating control of a school board elected by the parents and residents of other districts? What board or boards would levy taxes for school operations in these 54 districts constituting the consolidated metropolitan area? What provisions could be made for assuring substantial equality in tax levies among the 54 districts, if this were deemed requisite? What provisions would be made for financing? Would the validity of long-term bonds be jeopardized unless approved by all of the component districts as well as the State? What body would determine that portion of the curricula now left to the discretion of local school boards? Who would establish attendance zones, purchase school equipment, locate and construct new schools, and indeed attend to all the myriad day-to-day decisions that are necessary to school operations affecting potentially more than three-quarters of a million pupils? See n. 10, supra.

          It may be suggested that all of these vital operational problems are yet to be resolved by the District Court, and that this is the purpose of the Court of Appeals' proposed remand. But it is obvious from the scope of the interdistrict remedy itself that absent a complete restructuring of the laws of Michigan relating to school districts the District Court will become first, a de facto

Page 744

'legislative authority' to resolve these complex questions, and then the 'school superintendent' for the entire area. This is a task which few, if any, judges are qualified to perform and one which would deprive the people of control of schools through their elected representatives.

          Of course, no state law is above the Constitution. School district lines and the present laws with respect to local control, are not sacrosanct and if they conflict with the Fourteenth Amendment federal courts have a duty to prescribe appropriate remedies. See, e.g., Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972); United States v. Scotland Neck City Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972) (state or local officials prevented from carving out a new school district from an existing district that was in process of dismantling a dual school system); cf. Haney v. County Board of Education of Sevier County, 429 F.2d 364 (CA8 1970) (State contributed to separation of races by drawing of school district lines); United States v. Texas, 321 F.Supp. 1043 (ED Tex.1970), aff'd, 447 F.2d 441 (CA5 1971), cert. denied sub nom. Edgar v. United States, 404 U.S. 1016, 92 S.Ct. 675, 30 L.Ed.2d 663 (1972) (one or more school districts created and maintained for one race). But our prior holdings have been confined to violations and remedies within a single school district. We therefore turn to address, for the first time, the validity of a remedy mandating cross-district or interdistrict consolidation to remedy a condition of segregation found to exist in only one district.

          The controlling principle consistently expounded in our holdings is that the scope of the remedy is determined by the nature and extent of the constitutional violation. Swann, 402 U.S., at 16, 91 S.Ct., at 1276. Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must

Page 745

first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. Thus an interdistrict remedy might be in order where the racially discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race. In such circumstances an interdistrict remedy would be appropriate to eliminate the interdistrict segregation directly caused by the constitutional violation. Conversely, without an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy.

          The record before us, voluminous as it is, contains evidence of de jure segregated conditions only in the Detroit schools; indeed, that was the theory on which the litigation was initially based and on which the District Court took evidence. See supra at 725—726. With no showing of significant violation by the 53 outlying school districts and no evidence of any interdistrict violation or effect, the court went beyond the original theory of the case as framed by the pleadings and mandated a metropolitan area remedy. To approve the remedy ordered by the court would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and II or any holding of this Court.

          In dissent, Mr. Justice WHITE and Mr. Justice MARSHALL undertake to demonstrate that agencies having statewide authority participated in maintaining the dual school system found to exist in Detroit. They are apparently of the view that once such participation is

Page 746

shown, the District Court should have a relatively free hand to reconstruct school districts outside of Detroit in fashioning relief. Our assumption, arguendo, see infra, p. 748, that state agencies did participate in the maintenance of the Detroit system, should make it clear that it is not on this point that we part company. ²¹ The difference between us arises instead from established doctrine laid down by our cases. Brown, supra; Green, supra; Swann, supra; Scotland Neck, supra; and Emporia, supra, each addressed the issue of constitutional wrong in terms of an established geographic and administrative school system populated by both Negro and white children. In such a context, terms such as 'unitary' and 'dual' systems, and 'racially identifiable schools,' have meaning, and the necessary federal authority to remedy the constitutional wrong is firmly established. But the remedy 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. Disparate treatment of white and Negro students occurred within the Detroit school system, and not elsewhere, and on this record the remedy must be limited to that system. Swann, supra, 402 U.S., at 16, 91 S.Ct., at 1276.

          The constitutional right of the Negro respondents residing in Detroit is to attend a unitary school system in that district. Unless petitioners drew the district lines in a discriminatory fashion. or arranged for white stu-

Page 747

dents residing in the Detroit district to attend schools in Oakland and Macomb Counties, they were under no constitutional duty to make provisions for Negro students to do so. The view of the dissenters, that the existence of a dual system in Detroit can be made the basis for a decree requiring cross-district transportation of pupils, cannot be supported on the grounds that it represents merely the devising of a suitably flexible remedy for the violation of rights already established by our prior decisions. It can be supported only by drastic expansion of the constitutional right itself, an expansion without any support in either constitutional principle or precedent.²²

Page 748

          We recognize that the six-volume record presently under consideration contains language and some specific incidental findings thought by the District Court to afford a basis for interdistrict relief. However, these comparatively isolated findings and brief comments concern only one possible interdistrict violation and are found in the context of a proceeding that, as the District Court conceded, included no proof of segregation practiced by any of the 85 suburban school districts surrounding Detroit. The Court of Appeals, for example, relied on five factors which, it held, amounted to unconstitutional state action with respect to the violations found in the Detroit system:

          (1) It held the State derivatively responsible for the Detroit Board's violations on the theory that actions of Detroit as a political subdivision of the State were attributable to the State. Accepting, arguendo, the correctness of this finding of state responsibility for the segregated conditions within the city of Detroit, it does not follow that an interdistrict remedy is constitutionally justified or required. With a single exception, discussed later, there has been no showing that either the State or any of the 85 outlying districts engaged in activity that had a cross-district effect. The boundaries of the Detroit School District, which are coterminous with the boundaries of the city of Detroit, were established over a century ago by neutral legislation when the city was incorporated; there is no evidence in the record, nor is there any suggestion by the respondents, that either the original boundaries of the Detroit School District, or any other school district in Michigan, were established for the purpose of creating, maintaining, or perpetuating segregation of races. There is no claim and there is no evidence hinting that petitioner outlying schools districts and their

Page 749

processors, or the 30-odd other school districts in the tricounty area—but outside the District Court's 'desegregation area'—have ever maintained or operated anything but unitary school systems. Unitary school systems have been required for more than a century by the Michigan Constitution as implemented by state law.²³ White the schools of only one district have been affected, there is no constitutional power in the courts to decree relief balancing the racial composition of that district's schools with those of the surrounding districts.

          (2) There was evidence introduced at trial that, during the late 1950's, Carver School District, a predominantly Negro suburban district, contracted to have Negro high school students sent to a predominantly Negro school in Detroit. At the time, Carver was an independent school district that had no high school because, according to the trial evidence, 'Carver District . . . did not have a place for adequate high school facilities.' 484 F.2d., at 231. Accordingly, arrangements were made with Northern High School in the abutting Detroit School District so that the Carver high school students could obtain a secondary school education. In 1960 the Oak Park School District, a predominantly white suburban district, annexed the predominantly Negro Carver School District, through the initiative of local officials.

Page 750

Ibid. There is, of course, no claim that the 1960 annexation had a segregative purpose or result or that Oak Park now maintains a dual system.

          According to the Court of Appeals, the arrangement during the late 1950's which allowed Carver students to be educated within the Detroit District was dependent upon the 'tacit or express' approval of the State Board of Education and was the result of the refusal of the white suburban districts to accept the Carver students. Although there is nothing in the record supporting the Court of Appeals' supposition that suburban white schools refused to accept the Carver students, it appears that this situation, whether with or without the State's consent, may have had a segregative effect on the school populations of the two districts involved. However, since 'the nature of the violation determines the scope of the remedy,' Swann, 402 U.S., at 16, 91 S.Ct., at 1276, this isolated instance effecting two of the school districts would not justify the broad metropolitanwide remedy contemplated by the District Court and approved by the Court of Appeals, particularly since it embraced potentially 52 districts having no responsibility for the arrangement and involved 503,000 pupils in addition to Detroit's 276,000 students.

          (3) The Court of Appeals cited the enactment of state legislation (Act 48) which had the effect of rescinding Detroit's voluntary desegregation plan (the April 7 Plan). That plan, however, affected only 12 of 21 Detroit high schools and had no causal connection with the distribution of pupils by race between Detroit and the other school districts within the tricounty area.

          (4) The court relied on the State's authority to supervise schoolsite selection and to approve building construction as a basis for holding the State responsible for the segregative results of the school construction program in Detroit. Specifically, the Court of Appeals asserted

Page 751

that during the period between 1949 and 1962 the State Board of Education exercised general authority as overseer of site acquisitions by local boards for new school construction, and suggested that this state-approved school construction 'fostered segregation throughout the Detroit Metropolitan area.' 484 F.2d, at 241. This brief comment, however, is not supported by the evidence taken at trial since that evidence was specifically limited to proof that schoolsite acquisition and school construction within the city of Detroit produced de jure segregation within the city itself. Id., at 235—238. Thus, there was no evidence suggesting that the State's activities with respect to either school construction or site acquisition within Detroit affected the racial composition of the school population outside Detroit or, conversely, that the State's school construction and site acquisition activities within the outlying districts affected the racial composition of the schools within Detroit.

          (5) The Court of Appeals also relied upon the District Court's finding:

          'This and other financial limitations, such as those on bonding and the working of the state aid formula whereby suburban districts were able to make far larger per pupil expenditures despite less tax effort, have created and perpetuated systematic educational inequalities.' Id., at 239.

          However, neither the Court of Appeals nor the District Court offered any indication in the record or in their opinions as to how, if at all, the availability of state-financed aid for some Michigan students outside Detroit, but not for those within Detroit, might have affected the racial character of any of the State's school districts. Furthermore, as the respondents recognize, the application of our recent ruling in San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), to this state education financing system is questionable, and this issue was not

Page 752

addressed by either the Court of Appeals or the District Court. This, again, underscores the crucial fact that the theory upon which the the case proceeded related solely to the establishment of Detroit city violations as a basis for desegregating Detroit schools and that, at the time of trial, neither the parties nor the trial judge was concerned with a foundation for interdistrict relief.²⁴

          Petitioners have urged that they were denied due process by the manner in which the District Court limited their participation after intervention was allowed, thus precluding adequate opportunity to present evidence that they had committed no acts having a segregative effect in Detroit. In light of our holding that, absent an interdistrict violation, there is no basis for an interdistrict remedy, we need not reach these claims. It is clear, however, that the District Court, with the approval of the Court of Appeals, has provided an interdistrict remedy in the face of a record which shows no constitutional violations that would call for equitable relief except within the city of Detroit. In these circumstances there was no occasion for the parties to address, or for the District Court to consider whether there were racially discriminatory acts for which any of the 53 outlying districts were responsible and which had direct and significant segregative effect on schools of more than one district.

          We conclude that the relief ordered by the District Court and affirmed by the Court of Appeals was based upon an erroneous standard and was unsupported by record evidence that acts of the outlying districts effected the discrimination found to exist in the schools of De-

Page 753

troit. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion leading to prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy which has been delayed since 1970.

          Reversed and remanded.

           Mr. Justice STEWART, concurring.

          In joining the opinion of the Court, I think it appropriate, in view of some of the extravagant language of the dissenting opinions, to state briefly my understanding of what it is that the Court decides today.

          The respondents commenced this suit in 1970, claiming only that a constitutionally impermissible allocation of educational facilities along racial lines had occurred in public schools within a single school district whose lines were coterminous with those of the city of Detroit. In the course of the subsequent proceedings, the District Court found that public school officials had contributed to racial segregation within that district by means of improper use of zoning and attendance patterns, optional-attendance areas, and building and site selection. This finding of a violation of the Equal Protection Clause was upheld by the Court of Appeals, and is accepted by this Court today. See ante, at 738 n. 18. In the present posture of the case, therefore, the Court does not deal with questions of substantive constitutional law. The basic issue now before the Court concerns, rather, the appropriate exercise of federal equity jurisdiction.¹

Page 754

          No evidence was adduced and no findings were made in the District Court concerning the activities of school officials in districts outside the city of Detroit, and no school officials from the outside districts even participated in the suit until after the District Court had made the initial determination that is the focus of today's decision. In spite of the limited scope of the inquiry and the findings, the District Court concluded that the only effective remedy for the constitutional violations found to have existed within the city of Detroit was a desegregation plan calling for busing pupils to and from school districts outside the city. The District Court found that any desegregation plan operating wholly "within the corporate geographical limits of the city" would be deficient since it "would clearly make the entire Detroit public school system racially identifiable as Black." 484 F.2d 215, 244, 243. The Court of Appeals, in affirming the decision that an interdistrict remedy was necessary, noted that a plan limited to the city of Detroit 'would result in an all black school system immediately surrounded by practically all white suburban school systems, with an overwhelmingly white majority population in the total metropolitan area.' Id., at 245.

          The courts were in error for the simple reason that the remedy they thought necessary was not commensurate with the constitutional violation found. Within a single school district whose officials have been shown to have engaged in unconstitutional racial segregation, a remedial decree that affects every individual school may be dictated by 'common sense,' see Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 203, 93 S.Ct. 2686, 2695, 37 L.Ed.2d 548, and indeed may provide the only effective means to eliminate segregation 'root and branch,' Green v. County School Board of New Kent County, 391 U.S. 430, 438, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716, and to 'effectuate a transition to a racially nondiscriminatory school

Page 755

system.' Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083. See Keyes, supra, at 198—205, 93 S.Ct., at 2692—2696. But in this case the Court of Appeals approved the concept of a remedial decree that would go beyond the boundaries of the district where the constitutional violation was found, and include schools and schoolchildren in many other school districts that have presumptively been administered in complete accord with the Constitution.

          The opinion of the Court convincingly demonstrates, ante, at 742—743, that traditions of local control of schools, together with the difficulty of a judicially supervised restructuring of local administration of schools, render improper and inequitable such an interdistrict response to a constitutional violation found to have occurred only within a single school district.

          This is not to say, however, that an interdistrict remedy of the sort approved by the Court of Appeals would not be proper, or even necessary, in other factual situations. Were it to be shown, for example, that state officials had contributed to the separation of the races by drawing or redrawing school district lines, see Haney v. County Board of Education of Sevier County, 429 F.2d 364; cf. Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51; United States v. Scotland Neck City Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75; by transfer of school units between districts, United States v. Texas, 321 F.Supp. 1043, aff'd, 447 F.2d 441; Turner v. Warren County Board of Education, 313 F.Supp. 380; or by purposeful racially discriminatory use of state housing or zoning laws, then a decree calling for transfer of pupils across district lines or for restructuring of district lines might well be appropriate.

          In this case, however, no such interdistrict violation was shown. Indeed, no evidence at all concerning the administration of schools outside the city of Detroit was presented other than the fact that these schools contained

Page 756

a higher proportion of white pupils than did the schools within the city. Since the mere fact of different racial compositions in contiguous districts does not itself imply or constitute a violation of the Equal Protection Clause in the absence of a showing that such disparity was imposed, fostered, or encouraged by the State or its political subdivisions, it follows that no interdistrict violation was shown in this case.² The formulation of an inter-distrit remedy was thus simply not responsive to the factual record before the District Court and was an abuse of that court's equitable powers.

Page 757

          In reversing the decision of the Court of Appeals this Court is in no way turning its back on the proscription of state-imposed segregation first voiced in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, or on the delineation of remedial powers and duties most recently expressed in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554. In Swann the Court addressed itself to the range of equitable remedies available to the courts to effectuate the desegregation mandated by Brown and its progeny, noting that the task in choosing appropriate relief is 'to correct . . . the condition that offends the Constitution,' and that 'the nature of the violation determines the scope of the remedy . . .' Id., at 16, 91 S.Ct., at 1276.

          The disposition of this case thus falls squarely under these principles. The only 'condition that offends the Constitution' found by the District Court in this case is the existence of officially supported segregation in and among public schools in Detroit itself. There were no findings that the differing racial composition between schools in the city and in the outlying suburbs was caused by official activity of any sort. It follows that the decision to include in the desegregation plan pupils from school districts outside Detroit was not predicated upon any constitutional violation involving those school districts. By approving a remedy that would reach beyond the limits of the city of Detroit to correct a constitutional violation found to have occurred solely within that city the Court of Appeals thus went beyond the governing equitable principles established in this Court's decisions.

           Mr. Justice DOUGLAS, dissenting.

          The Court of Appeals has acted responsibly in these cases and we should affirm its judgment. This was the fourth time the case was before it over a span of less than three years. The Court of Appeals affirmed the District

Page 758

Court on the issue of segregation and on the 'Detroit-only' plans of desegregation. The Court of Appeals also approved in principle the use of a metropolitan area plan, vacating and remanding only to allow the other affected school districts to be brought in as parties, and in other minor respects.

          We have before us today no plan for integration. The only orders entered so far are interlocutory. No new principles of law are presented here. Metropolitan treatment of metropolitan problems is commonplace. If this were a sewage problem or a water problem, or an energy problem, there can be no doubt that Michigan would stay well within federal constitutional bounds if it sought a metropolitan remedy. In Bradley v. School Board of City of Richmond, 4 Cir., 462 F.2d 1058, aff'd by an equally divided Court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771, we had a case involving the Virginia school system where local school boards had 'exclusive jurisdiction' of the problem, not 'the State Board of Education,' 462 F.2d, at 1067. Here the Michigan educational system is unitary, maintained and supported by the legislature and under the general supervision of the State Board of Education.¹ The State controls the boundaries of school districts.² The State supervises schoolsite selection.³ The construction is done through municipal bonds approved by several state agencies.⁴ Education in Michigan is a state project with very little completely local control,⁵ except that the schools are financed locally, not on a statewide basis. Indeed

Page 759

the proposal to put school funding in Michigan on a statewide basis was defeated at the polls in November 1972. ⁶ Yet the school districts by state law are agencies of the State.⁷ State action is indeed challenged as violating the Equal Protection Clause. Whatever the reach of that claim may be, it certainly is aimed at discrimination based on race.

          Therefore as the Court of Appeals held there can be no doubt that as a matter of Michigan law the State itself has the final say as to where and how school district lines should be drawn.⁸

          When we rule against the metropolitan area remedy we take a step that will likely put the problems of the blacks and our society back to the period that antedated the 'separate but equal' regime of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. The reason is simple.

          The inner core of Detroit is now rather solidly black;⁹ and the blacks, we know, in many instances are likely to

Page 760

be poorer,¹⁰ just as were the Chicanos in San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16. By that decision the poorer school districts¹¹ must pay their own way. It is therefore a foregone conclusion that we have now given the States a formula whereby the poor must pay their own way.¹²

Page 761

          Today's decision, given Rodriguez, means that there is no violation of the Equal Protection Clause though the schools are segregated by race and though the black schools are not only 'separate' but 'inferior.'

          So far as equal protection is concerned we are now in a dramatic retreat from the 7-to-1 decision in 1896 that blacks could be segregated in public facilities, provided they received equal treatment.

          As I indicated in Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 214—217, 93 S.Ct. 2686, 2700—2701, 37 L.Ed.2d 548, there is so far as the school cases go no constitutional difference between de facto and de jure segregation. Each school board performs state action for Fourteenth Amendment purposes when it draws the lines that confine it to a given area, when it builds schools at particular sites, or when it allocates students. The creation of the school districts in Metropolitan Detroit either maintained existing segregation or caused additional segregation. Restrictive covenants maintained by state action or inaction build black ghettos. It is state action when public funds are dispensed by housing agencies to build racial ghettos. Where a community is racially mixed and school authorities segregate schools, or assign black teachers to black schools or close schools in fringe areas and build new schools in black areas and in more distant white areas, the State creates and nurtures a segregated school system, just as surely as did those States involved in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, when they maintained dual school systems.

          All these conditions and more were found by the District Court to exist. The issue is not whether there should be racial balance but whether the State's use of

Page 762

various devices that end up with black schools and white schools brought the Equal Protection Clause into effect. Given the State's control over the educational system in Michigan, the fact that the black schools are in one district and the white schools are in another is not controlling—either constitutionally or equitably.¹³ No specific plan has yet been adopted. We are still at an interlocutory stage of a long drawn-out judicial effort at school desegregation. It is conceivable that ghettos develop on their own without any hint of state action. But since Michigan by one device or another has over the years created black school districts and white school districts, the task of equity is to provide a unitary system for the affected area where, as here, the State washes its hands of its own creations.

          Mr. Justice WHITE, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, dissenting.

          The District Court and the Court of Appeals found that over a long period of years those in charge of the Michigan public schools engaged in various practices calculated to effect the segregation of the Detroit school system. The Court does not question these findings, nor could it reasonably do so. Neither does it question the obligation of the federal courts to devise a feasible and effective remedy. But it promptly cripples the ability of the judiciary to perform this task, which is of fundamental importance to our constitutional system, by

Page 763

fashioning a strict rule that remedies in school cases must stop at the school district line unless certain other conditions are met. As applied here, the remedy for unquestioned violations of the protection rights of Detroit's Negroes by the Detroit School Board and the State of Michigan must be totally confined to the limits of the school district and may not reach into adjoining or surrounding districts unless and until it is proved there has been some sort of 'interdistrict violation'—unless unconstitutional actions of the Detroit School Board have had a segregative impact on other districts, or unless the segregated condition of the Detroit schools has itself been influenced by segregative practices in those surrounding districts into which it is proposed to extend the remedy.

          Regretfully, and for several reasons, I can join neither the Court's judgment nor its opinion. The core of my disagreement is that deliberate acts of segregation and their consequences will go unremedied, not because a remedy would be infeasible or unreasonable in terms of the usual criteria governing school desegregation cases, but because an effective remedy would cause what the Court considers to be undue administrative inconvenience to the State. The result is that the State of Michigan, the entity at which the Fourteenth Amendment is directed, has successfully insulated itself from its duty to provide effective desegregation remedies by vesting sufficient power over its public schools in its local school districts. If this is the case in Michigan, it will be the case in most States.

          There are undoubted practical as well as legal limits to the remedial powers of federal courts in school desegregation cases. The Court has made it clear that the achievement of any particular degree of racial balance in the school system is not required by the Constitution;

Page 764

nor may it be the primary focus of a court in devising an acceptable remedy for de jure segregation. A variety of procedures and techniques are available to a district court engrossed in fashioning remedies in a case such as this; but the courts must keep in mind that they are dealing with the process of educating the young, including the very young. The task is not to devise a system of pains and penalties to punish constituttional violations brought to light. Rather, it is to desegregate an educational system in which the races have been kept apart, without, at the same time, losing sight of the central educational function of the schools.

          Viewed in this light, remedies calling for school zoning, pairing, and pupil assignments, become more and more suspect as they require that schoolchildren spend more and more time in buses going to and from school and that more and more educational dollars be diverted to transportation systems. Manifestly, these considerations are of immediate and urgent concern when the issue is the desegregation of a city school system where residential patterns are predominantly segregated and the respective areas occupied by blacks and whites are heavily populated and geographically extensive. Thus, if one postulates a metropolitan school system covering a sufficiently large area, with the population evenly divided between whites and Negroes and with the races occupying identifiable residential areas, there will be very real practical limits on the extent to which racially identifiable schools can be eliminated within the school district. It is also apparent that the larger the proportion of Negroes in the area, the more difficult it would be to avoid having a substantial number of all-black or nearly all-black schools.

          The Detroit school district is both large and heavily populated. It covers 139.6 square miles, encircles two

Page 765

entirely separate cities and school districts, and surrounds a third city on three sides. Also, whites and Negroes live in identifiable areas in the city. The 1970 public school enrollment in the city school district totaled 289,763 and was 63.6% Negro and 34.8% white. ¹ If 'racial balance' were achieved in every school in the district, each school would be approximately 64% Negro. A remedy confined to the district could achieve no more desegregation. Furthermore, the proposed intracity remedies were beset with practical problems. None of the plans limited to the school district was satisfactory to the District Court. The most promising proposal, submitted by respondents, who were the plaintiffs in the District Court, would 'leave many of its schools 75 to 90 per cent Black.' 484 F.2d 215, 244 (CA6 1973).² Transportation on a 'vast scale' would be required; 900 buses would have to be purchased for the transportation of pupils who are not now bused. Id., at 243. The District Court also found that the plan 'would change a school system which is now Black and White to one that would be perceived as Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population.' Id., at 244. For the District Court, '(t)he conclusion, under the evidence in this case, is inescapable that relief of segregation in the public schools of the

Page 766

City of Detroit cannot be accomplished within the corporate geographical limits of the city.' Ibid.

          The District Court therefore considered extending its remedy of the suburbs. After hearings, it concluded that a much more effective desegregation plan could be implemented if the suburban districts were included. In proceeding to design its plan on the basis that student bus rides to and from school should not exceed 40 minutes each way as a general matter, the court's express finding was that '(f)or all the reasons stated heretofore including time, distance, and transportation factors—desegregation within the area described is physically easier and more practicable and feasible, than desegregation efforts limited to the corporate geographic limits of the city of Detroit.' 345 F.Supp. 914, 930 (ED Mich.1972).

          The Court of Appeals agreed with the District Court that the remedy must extend beyond the city limits of Detroit. It concluded that '(i)n the instant case the only feasible desegregation plan involves the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts for the limited purpose of providing an effective desegregation plan.' 484 F.2d, at 249. (Emphasis added.) It also agreed that 'any Detroit only desegregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a State in which the racial composition is 87 per cent white and 13 per cent black.' Ibid. There was 'more than ample support for the District Judge's findings of unconstitutional segregation by race resulting in major part from action and inaction of public authorities, both local and State. . . . Under this record a remedial order of a court of equity which left the Detroit school system overwhelmingly black (for the fore-

Page 767

seeable future) surrounded by suburban school systems overwhelmingly white cannot correct the constitutional violations herein found.' Id., at 250. To conclude otherwise, the Court of Appeals announced, would call up 'haunting memories of the now long overruled and discredited 'separate but equal doctrine' of Plessy v. Ferguson, 163 U.S. 537 (16 S.Ct. 1138, 41 L.Ed. 256) . . . (1896),' and 'would be opening a way to nullify Brown v. Board of Education which overruled Plessy. . . .' 484 F.2d, at 249.

          This Court now reverses the Court of Appeals. It does not question the District Court's findings that any feasible Detroit-only plan would leave many schools 75 to 90 percent black and that the district would become progressively more black as whites left the city. Neither does the Court suggest that including the suburbs in a desegregation plan would be impractical or infeasible because of educational considerations, because of the number of children requiring transportation, or because of the length of their rides. Indeed, the Court leaves unchallenged the District Court's conclusion that a plan including the suburbs would be physically easier and more practical and feasible than a Detroit-only plan. Whereas the most promising Detroit-only plan, for example, would have entailed the purchase of 900 buses, the metropolitan plan would involve the acquisition of no more than 350 new vehicles.

          Despite the fact that a metropolitan remedy, if the findings of the District Court accepted by the Court of Appeals are to be credited, would more effectively desegregate the Detroit schools, would prevent resegregation,³ and would be easier and more feasible from many

Page 768

standpoints, the Court fashions out of whole cloth an arbitrary rule that remedies for constitutional violations occurring in a single Michigan school district must stop at the school district line. Apparently, no matter how much less burdensome or more effective and efficient in many respects, such as transportation, the metropolitan plan might be, the school district line may not be crossed. Otherwise, it seems, there would be too much disruption of the Michigan scheme for managing its educational system, too much confusion, and too much administrative burden.

          The District Court, on the scene and familiar with local conditions, had a wholly different view. The Court of Appeals also addressed itself at length to matters of local law and to the problems that interdistrict remedies might present to the State of Michigan. Its conclusion, flatly contrary to that of this Court, was that 'the constitutional right to equality before the law (is not) hemmed in by the boundaries of a school district' and that an interdistrict remedy

          'is supported by the status of school districts under Michigan law and by the historical control exercised over local school districts by the legislature of Michigan and by State agencies and officials . . .. (I)t is well established under the Constitution and laws of Michigan that the public school system is a State function and that local school districts are instrumentalities of the State created for administrative convenience.'⁴ 484 F.2d, at 245—246.

Page 769

          I am surprised that the Court, sitting at this distance from the State of Michigan, claims better insight than the Court of Appeals and the District Court as to whether an interdistrict remedy for equal protection violations practiced by the State of Michigan would involve undue difficulties for the State in the management of its public schools. In the area of what constitutes an acceptable desegregation plan, 'we must of necessity rely to a large extent, as this Court has for more than 16 years, on the informed judgment of the district courts in the first instance and on courts of appeals.' Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 28, 91 S.Ct. 1267, 1282, 28 L.Ed.2d 554 (1971). Obviously, whatever difficulties there might be, they are surmountable; for the Court itself concedes that, had there been sufficient evidence of an interdistrict violation, the District Court could have fashioned a single remedy for the districts implicated rather than a different remedy for each district

Page 770

in which the violation had occurred or had an impact.

          I am even more mystified as to how the Court can ignore the legal reality that the constitutional violations, even if occurring locally, were committed by governmental entities for which the State is responsible and that it is the State that must respond to the command of the Fourteenth Amendment. An interdistrict remedy for the infringements that occurred in this case is well within the confines and powers of the State, which is the governmental entity ultimately responsible for desegregating its schools. The Michigan Supreme Court has observed that '(t)he school district is a State agency,' Attorney General ex rel. Kies v. Lowrey, 131 Mich. 639, 644, 92 N.W. 289, 290 (1902), and that "(e)ducation in Michigan belongs to the State. It is no part of the local self-government inherent in the township or municipality, except so far as the legislature may choose to make it such. The Constitution has turned the whole subject over to the legislature. . . ." Attorney General ex rel. Lacharias v. Detroit Board of Education, 154 Mich. 584, 590, 118 N.W. 606, 609 (1908).

          It is unnecessary to catalogue at length the various public misdeeds found by the District Court and the Court of Appeals to have contributed to the present segregation of the Detroit public schools. The legislature contributed directly by enacting a statute overriding a partial high school desegregation plan voluntarily adopted by the Detroit Board of Education. Indirectly, the trial court found the State was accountable for the thinly disguised, pervasive acts of segregation committed by the Detroit Board,⁵ for Detroit's school construction

Page 771

plans that would promote segregation, and for the Detroit school district's not having funds for pupil transportation within the district. The State was also chargeable with responsibility for the transportation of Negro high school students in the late 1950's from the suburban Ferndale School District, past closer suburban and Detroit high schools with predominantly white student bodies, to a predominantly Negro high school within Detroit. Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S., at 20—21, 91 S.Ct. at 1278, and Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), make abundantly clear that the tactics employed by the Detroit Board of Education, a local instrumentality of the State, violated the constitutional rights of the Negro students in Detroit's public schools and required equitable relief sufficient to accomplish the maximum, practical desegregation within the power of the political body against which the Fourteenth Amendment directs its proscriptions. No 'State' may deny any individual the equal protection of the laws; and if the Constitution and the Supremacy Clause are to have any substance at all, the courts must be free to devise workable remedies against the political entity with the effective power to determine local choice. It is also the case here that the State's legislative interdiction of Detroit's voluntary effort to desegregate its school system was unconstitutional. See North Carolina State Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971).

          The Court draws the remedial line at the Detroit school district boundary, even though the Fourteenth Amendment is addressed to the State and even though

Page 772

the State denies equal protection of the laws when its public agencies, acting in its behalf, invidiously discriminate. The State's default is 'the condition that offends the Constitution,' Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S., at 16, 91 S.Ct. at 1277, and state officials may therefore be ordered to take the necessary measures to completely eliminate from the Detroit public schools 'all vestiges of state-imposed segregation.' Id., at 15, 91 S.Ct. at 1275. I cannot understand, nor does the majority satisfactorily explain, why a federal court may not order an appropriate interdistrict remedy, if this is necessary or more effective to accomplish this constitutionally mandated task. As the Court unanimously observed in Swann: 'Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.' Ibid. In this case, both the right and the State's Fourteenth Amendment violation have concededly been fully established, and there is no acceptable reason for permitting the party responsible for the constitutional violation to contain the remedial powers of the federal court within administrative boundaries over which the transgressor itself has plenary power.

          The unwavering decisions of this Court over the past 20 years support the assumption of the Court of Appeals that the District Court's remedial power does not cease at the school district line. The Court's first formulation of the remedial principles to be followed in disestablishing racially discriminatory school systems recognized the variety of problems arising from different local school conditions and the necessity for that 'practical flexibility' traditionally associated with courts of equity. Brown v. Board of Education, 349 U.S. 294, 299—301, 75 S.Ct. 753, 755 756, 99 L.Ed. 1083, (1955) (Brown II). Indeed, the district courts to which

Page 773

the Brown cases were remanded for the formulation of remedial decrees were specifically instructed that they might consider, inter alia, 'revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis . . ..' Id., at 300—301, 75 S.Ct. at 756. The malady addressed in Brown II was the statewide policy of requiring or permitting school segregation on the basis of race, while the record here concerns segregated schools only in the city of Detroit. The obligation to rectify the unlawful condition nevertheless rests on the State. The permissible revision of school districts contemplated in Brown II rested on the State's responsibility for desegregating its unlawfully segregated schools, not on any segregative effect which the condition of segregation in one school district might have had on the schools of a neighboring district. The same situation obtains here and the same remedial power is available to the District Court.

          Later cases reinforced the clearly essential rules that state officials are fully answerable for unlawfully caused conditions of school segregation which can effectively be controlled only by steps beyond the authority of local school districts to take, and that the equity power of the district courts includes the ability to order such measures implemented. When the highest officials of the State of Arkansas impeded a federal court order to desegregate the public schools under the immediate jurisdiction of the Little Rock School Board, this Court refused to accept the local board's assertion of its good faith as a legal excuse for delay in implementing the desegregation order. The Court emphasized that 'from the point of view of the Fourteenth Amendment, they (the local school board members) stand in this litigation as the agents of the State.' Cooper v. Aaron, 358 U.S. 1, 16, 78 S.Ct. 1401, 1408, 3 L.Ed.2d 5 (1958). Per-

Page 774

haps more importantly for present purposes, the Court went on to state:

          'The record before us clearly establishes that the growth of the Board's difficulties to a magnitude beyond its unaided power to control is the product of state action. Those difficulties . . . can also be brought under control by state action.' Ibid.

          See also Griffin v. School Board, 377 U.S. 218, 228, 233—234, 84 S.Ct. 1226, 1231, 1234—1235, 12 L.Ed.2d 256 (1964).

          In the context of dual school systems, the Court subsequently made clear the 'affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch' and to come forward with a desegregation plan that 'promises realistically to work now.' Green v. County School Board of New Kent County, 391 U.S. 430, 437—438, 439, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). 'Freedom of choice' plans were rejected as acceptable desegregation measures where 'reasonably available other ways . . . promising speedier and more effective conversion to a unitary, nonracial school system . . .' exist. Id., at 441, 88 S.Ct., at 1696. Imperative insistence on immediate full desegregation of dual school systems 'to operate now and hereafter only unitary schools' was reiterated in Alexander v. Holmes County Board of Education, 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969), and Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970).

          The breadth of the equitable authority of the district courts to accomplish these comprehensive tasks was reaffirmed in much greater detail in Swann v. Charlotte-Mecklenburg Board of Education, supra, and the companion case of Davis v. School Comm'rs of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971), where there was unanimous assent to the following propositions:

          'Having once found a violation, the district judge or school authorities should make every effort to

Page 775

          achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation. A district court may and should consider the use of all available techniques including restructuring of attendance zones and both contiguous and noncontiguous attendance zones. . . . The measure of any desegregation plan is its effectiveness.' Id., at 37, 91 S.Ct. at 1292.

          No suggestion was made that interdistrict relief was not an available technique. In Swann v. Charlotte-Mecklenburg Board of Education itself, the Court, without dissent, recognized that the District Judge, in fulfilling his obligation to 'make every effort to achieve the greatest possible degree of actual desegregation(,) will thus necessarily be concerned with the elimination of one-race schools.' 402 U.S., at 26, 91 S.Ct., at 1281. Nor was there any dispute that to break up the dual school system, it was within the District Court's 'broad remedial powers' to employ a 'frank—and sometimes drastic—gerrymandering of school districts and attendance zones,' as well as 'pairing, 'clustering,' or 'grouping' of schools,' to desegregate the 'formerly all-Negro schools,' despite the fact that these zones might not be compact or contiguous and might be 'on opposite ends of the city.' Id., at 27, 91 S.Ct. at 1282. The school board in that case had jurisdiction over a 550-square-mile area encompassing the city of Charlotte and surrounding Mecklenburg County, North Carolina. The Mobile County, Alabama, board in Davis embraced a 1,248-squaremile area, including the city of Mobile. Yet the Court approved the District Court's authority to award countywide relief in each case in order to accomplish desegregation of the dual school system.

          Even more recently, the Court specifically rejected the claim that a new school district, which admittedly would operate a unitary school system within its borders, was beyond the reach of a court-ordered desegregation plan

Page 776

for other school districts, where the effectiveness of the plan as to the other districts depended upon the availability of the facilities and student population of the new district. In Wright v. Council of City of Emporia, 407 U.S. 451, 470, 92 S.Ct. 2196, 2207, 33 L.Ed.2d 51 (1972), we held 'that a new school district may not be created where its effect would be to impede the process of dismantling a dual system.' Mr. Justice Stewart's opinion for the Court made clear that if a proposal to erect new district boundary lines 'would impede the dismantling of the (pre-existing) dual system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out.' Id., at 460, 92 S.Ct. at 2203. In United States v. Scotland Neck Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972), this same standard was applied to forbid North Carolina from creating a new city school district within a larger district which was in the process of dismantling a dual school system. The Court noted that if establishment of the new district were permitted, the 'traditional racial identities of the schools in the area would be maintained,' id., at 490, 92 S.Ct., at 2717.

          Until today, the permissible contours of the equitable authority of the district courts to remedy the unlawful establishment of a dual school system have been extensive, adaptable, and fully responsive to the ultimate goal of achieving 'the greatest possible degree of actual desegregation.' There are indeed limitations on the equity powers of the federal judiciary, but until now the Court had not accepted the proposition that effective enforcement of the Fourteenth Amendment could be limited by political or administrative boundary lines demarcated by the very State responsible for the constitutional violation and for the disestablishment of the dual system. Until now the Court has instead looked to practical considerations in effectuating a desegregation

Page 777

decree, such as excessive distance, transportation time, and hazards to the safety of the schoolchildren involved in a proposed plan. That these broad principles have developed in the context of dual school systems compelled or authorized by state statute at the time of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1945) (Brown I), does not lessen their current applicability to dual systems found to exist in other contexts, like that in Detroit, where intentional school segregation does not stem from the compulsion of state law, but from deliberate individual actions of local and state school authorities directed at a particular school system. The majority properly does not suggest that the duty to eradicate completely the resulting dual system in the latter context is any less than in the former. But its reason for incapacitating the remedial authority of the federal judiciary in the presence of school district perimeters in the latter context is not readily apparent.

          The result reached by the Court certainly cannot be supported by the theory that the configuration of local governmental units is immune from alteration when necessary to redress constitutional violations. In addition to the well-established principles already noted, the Court has elsewhere required the public bodies of a State to restructure the State's political subdivisions to remedy infringements of the constitutional rights of certain members of its populace, notably in the reapportionment cases. In Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), for example, which held that equal protection of the laws demands that the seats in both houses of a bicameral state legislature be apportioned on a population basis, thus necessitating wholesale revision of Alabama's voting districts, the Court remarked:

          'Political subdivisions of States—counties, cities, or whatever—never were and never have been con-

Page 778

          sidered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.' Id., at 575, 84 S.Ct., at 1389.

          And even more pointedly, the Court declared in Gomillion v. Lightfoot, 364 U.S. 339, 334—345, 81 S.Ct. 125, 129, 5 L.Ed.2d 110 (1960), that '(l) egislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution.

          Nor does the Court's conclusion follow from the talismanic invocation of the desirability of local control over education. Local autonomy over school affairs, in the sense of the community's participation in the decisions affecting the education of its children, is, of course, an important interest. But presently constituted school district lines do not delimit fixed and unchangeable areas of a local educational community. If restructuring is required to meet constitutional requirements, local authority may simply be redefined in terms of whatever configuration is adopted, with the parents of the children attending schools in the newly demarcated district or attendance zone continuing their participation in the policy management of the schools with which they are concerned most directly. The majority's suggestion that judges should not attempt to grapple with the administrative problems attendant on a reorganization of school attendance patterns is wholly without foundation. It is precisely this sort of task which the district courts have been properly exercising to vindicate the constitutional rights of Negro students since Brown I and which the Court has never suggested they lack the capacity to perform. Intradistrict revisions of attendance zones, and pairing and grouping of schools, are techniques unanimously approved in Swann v. Charlotte-Mecklenburg

Page 779

Board of Education which entail the same sensitivity to the interet of parents in the education their children receive as would an interditrict plan which is likely to employ the very same methods. There is no reason to suppose that the District Court, which has not yet adopted a final plan of desegregation, would not be as capable of giving or as likely to give sufficient weight to the interest in community participation in schools in an interdistrict setting, consistent with the dictates of the Fourteenth Amendment. The majority's assumption that the District Court would act otherwise is a radical departure from the practical flexibility previously left to the equity powers of the federal judiciary.

          Finally, I remain wholly unpersuaded by the Court's assertion that 'the remedy 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.' Ante, p. 746. In the first place, under this premise the Court's judgment is itself infirm; for had the Detroit school system not followed an official policy of segregation throughout the 1950's and 1960's, Negroes and whites would have been going to school together. There would have been no, or at least not as many, recognizable Negro schools and no, or at least not as many, white schools, but 'just schools,' and neither Negroes nor whites would have suffered from the effects of segregated education, will all its shortcomings. Surely the Court's remedy will not restore to the Negro community, stigmatized as it was by the dual school system, what it would have enjoyed over all or most of this period if the remedy is confined to present-day Detroit; for the maximum remedy available within that area will leave many of the schools almost totally black, and the system itself will be predominantly black and will become increasingly so. Moreover, when a State has engaged in acts of official segregation over a lengthy

Page 780

period of time, as in the case before us, it is unrealistic to suppose that the children who were victims of the State's unconstitutional conduct could now be provided the benefits of which they were wrongfully deprived. Nor can the benefits which accrue to school systems in which schoolchildren have not been officially segregated, and to the communities supporting such school systems, be fully and immediately restored after a substantial period of unlawful segregation. The education of children of different races in a desegregated environment has unhappily been lost, along with the social, economic, and political advantages which accompany a desegregated school system as compared with an unconstitutionally segregated system. It is for these reasons that the Court has consistently followed the course of requiring the effects of past official segregation to be eliminated 'root and branch' by imposing, in the present, the duty to provide a remedy which will achieve 'the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.' It is also for these reasons that once a constitutional violation has been found, the district judge obligated to provide such a remedy 'will thus necessarily be concerned with the elimination of one-race schools.' These concerns were properly taken into account by the District Judge in this case. Confining the remedy to the boundaries of the Detroit district is quite unrelated either to the goal of achieving maximum desegregation or to those intensely practical considerations, such as the extent and expense of transportation, that have imposed limits on remedies in cases such as this. The Court's remedy, in the end, is essentially arbitrary and will leave serious violations of the Constitution substantially unremedied.

          I agree with my Brother DOUGLAS that the Court of Appeals has acted responsibly in these cases. Regre-

Page 781

tably, the majority's arbitrary limitation on the equitable power of federal district courts, based on the invisible borders of local school districts, is unrelated to the State's responsibility for remedying the constitutional wrongs visited upon the Negro schoolchildren of Detroit. It is oblivious to the potential benefits of metropolitan relief, to the noneducational communities of interest among neighborhoods located in and sometimes bridging different school districts, and to the considerable interdistrict cooperation already existing in various educational areas. Ultimately, it is unresponsive to the goal of attaining the utmost actual desegregation consistent with restraints of practicability and thus augurs the frequent frustration of the remedial powers of the federal courts.

          Here the District Court will be forced to impose an intracity desegregation plan more expensive to the district, more burdensome for many of Detroit's Negro students, and surely more conductive to white flight than a metropolitan plan would be—all of this merely to avoid what the Detroit School Board, the District Court, and the en banc Court of Appeals considered to be the very manageable and quite surmountable difficulties that would be involved in extending the desegregation remedy to the suburban school districts.

          I am therefore constrained to record my disagreement and dissent.

           Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice WHITE join, dissenting.

          In Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), this Court held that segregation of children in public schools on the basis of race deprives minority group childen of equal educational opportunities and therefore denies them the equal protection of the laws under the

Page 782

Fourteenth Amendment. This Court recognized then that remedying decades of segregation in public education would not be an easy task. Subsequent events, unfortunately, have seen that prediction bear bitter fruit. But however imbedded old ways, however ingrained old prejudices, this Court has not been diverted from its appointed task of making 'a living truth' of our constitutional ideal of equal justice under law. Cooper v. Aaron, 358 U.S. 1, 20, 78 S.Ct. 1401, 1410, 3 L.Ed.2d 5 (1958).

          After 20 years of small, often difficult steps toward that great end, the Court today takes a giant step backwards. Notwithstanding a record showing widespread and pervasive racial segregation in the educational system provided by the State of Michigan for children in Detroit, this Court holds that the District Court was powerless to require the State to remedy its constitutional violation in any meaningful fashion. Ironically purporting to base its result on the principle that the scope of the remedy in a desegregation case should be determined by the nature and the extent of the constitutional violation, the Court's answer is to provide no remedy at all for the violation proved in this case, thereby guaranteeing that Negro children in Detroit will receive the same separate and inherently unequal education in the future as they have been unconstitutionally afforded in the past.

          I cannot subscribe to this emasculation of our constitutional guarantee of equal protection of the laws and must respectfully dissent. Our precedents, in my view, firmly establish that where, as here, state-imposed segregation has been demonstrated, it becomes the duty of the State to eliminate root and branch all vestiges of racial discrimination and to achieve the greatest possible degree of actual desegregation. I agree with both the District Court and the Court of Appeals that, under the facts of this case, this duty cannot be fulfilled unless the State

Page 783

of Michigan involves outlying metropolitan area school districts in its desegregation remedy. Furthermore, I perceive no basis either in law or in the practicalities of the situation justifying the State's interposition of school district boundaries as absolute barriers to the implementation of an effective desegregation remedy. Under established and frequently used Michigan procedures, school district lines are both flexible and permeable for a wide variety of purposes, and there is no reason why they must now stand in the way of meaningful desegregation relief.

          The rights at issue in this case are too fundamental to be abridged on grounds as superficial as those relied on by the majority today. We deal here with the right of all of our children, whatever their race, to an equal start in life and to an equal opportunity to reach their full potential as citizens. Those children who have been denied that right in the past deserve better than to see fences thrown up to deny them that right in the future. Our Nation, I fear, will be ill served by the Court's refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together.

          The great irony of the Court's opinion and, in my view, its most serious analytical flaw may be gleaned from its concluding sentence, in which the Court remands for 'prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy which has been delayed since 1970.' Ante, at 753. The majority, however, seems to have forgotten the District Court's explicit finding that a Detroit-only decree, the only remedy permitted under today's decision, 'would not accomplish desegregation.'

Page 784

          Nowhere in the Court's opinion does the majority confront, let alone respond to, the District Court's conclusion that a remedy limited to the city of Detroit would not effectively desegregate the Detroit city schools. I, for one, find the District Court's conclusion well supported by the record and its analysis compelled by our prior cases. Before turning to these questions, however, it is best to begin by laying to rest some mischaracterizations in the Court's opinion with respect to the basis for the District Court's decision to impose a metropolitan remedy.

          The Court maintains that while the initial focus of this lawsuit was the condition of segregation within the Detroit city schools, the District Court abruptly shifted focus in mid-course and altered its theory of the case. This new theory, in the majority's words, was 'equating racial imbalance with a constitutional violation calling for a remedy.' Ante, at 741, n. 19. As the following review of the District Court's handling of the case demonstrates, however, the majority's characterization is totally inaccurate. Nowhere did the District Court indicate that racial imbalance between school districts in the Detroit metropolitan area or within the Detroit School District constituted constitutional violation calling for interdistrict relief. The focus of this case was from the beginning, and has remained, the segregated system of education in the Detroit city schools and the steps necessary to cure that condition which offends the Fourteenth Amendment.

          The District Court's consideration of this case began with its finding, which the majority accepts, that the State of Michigan, through its instrumentality, the Detroit Board of Education, engaged in widespread purposeful acts of racial segregation in the Detroit School District. Without belaboring the details, it is sufficient to

Page 785

note that the various techniques used in Detroit were typical of methods employed to segregate students by race in areas where no statutory dual system of education has existed. See, e.g., Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). Exacerbating the effects of extensive residential segregation between Negroes and whites, the school board consciously drew attendance zones along lines which maximized the segregation of the races in schools as well. Optional attendance zones were created for neighborhoods undergoing racial transition so as to allow whites in these areas to escape integration. Negro students in areas with overcrowded schools were transported past or away from closer white schools with available space to more distant Negro schools. Grade structures and feeder-school patterns were created and maintained in a manner which had the foreseeable and actual effect of keeping Negro and white pupils in separate schools. Schools were also constructed in locations and in sizes which ensured that they would open with predominantly one-race student bodies. In sum, the evidence adduced below showed that Negro children had been intentionally confined to an expanding core of virtually all-Negro schools immediately surrounded by a receding band of all-white schools.

          Contrary to the suggestions in the Court's opinion, the basis for affording a desegregation remedy in this case was not some perceived racial imbalance either between schools within a single school district or between independent school districts. What we confront here is 'a systematic program of segregation affecting a substantial portion of the students, schools . . . and facilities within the school system . . ..' Id., 413 U.S., at 201, 93 S.Ct., at 2694. The constitutional violation found here was not some de facto racial imbalance, but rather the purposeful, intentional, massive, de jure segregation of the Detroit city schools,

Page 786

which under our decision in Keyes, forms 'a predicate for a finding of the existence of a dual school system,' ibid., 93 S.Ct., at 2694, and justifies 'all-out desegregation.' Id., at 214, 93 S.Ct., at 2700.

          Having found a de jure segregated public school system in operation in the city of Detroit, the District Court turned next to consider which officials and agencies should be assigned the affirmative obligation to cure the constitutional violation. The court concluded that responsibility for the segregation in the Detroit city schools rested not only with the Detroit Board of Education, but belonged to the State of Michigan itself and the state defendants in this case that is, the Governor of Michigan, the Attorney General, the State Board of Education, and the State Superintendent of Public Instruction. While the validity of this conclusion will merit more extensive analysis below, suffice it for now to say that it was based on three considerations. First, the evidence at trial showed that the State itself had taken actions contributing to the segregation within the Detroit schools. Second, since the Detroit Board of Education was an agency of the State of Michigan, its acts of racial discrimination were acts of the State for purposes of the Fourteenth Amendment. Finally, the District Court found that under Michigan law and practice, the system of education was in fact a state school system, characterized by relatively little local control and a large degree of centralized state regulation, with respect to both educational policy and the structure and operation of school districts.

          Having concluded, then, that the school system in the city of Detroit was a de jure segregated system and that the State of Michigan had the affirmative duty to remedy that condition of segregation, the District Court then turned to the difficult task of devising an effective remedy. It bears repeating that the District Court's focus at this stage of the litigation remained what it had

Page 787

been at the beginning—the condition of segregation within the Detroit city schools. As the District Court stated: 'From the initial ruling (on segregation) to this day, the basis of the proceedings has been and remains the violation: de jure school segregation. . . . The task before this court, therefore, is now, and . . . has always been, how to desegregate the Detroit public schools.'

          The District Court first considered three desegregation plans limited to the geographical boundaries of the city of Detroit. All were rejected as ineffective to desegregate the Detroit city schools. Specifically, the District Court determined that the racial composition of the Detroit student body is such that implementation of any Detroit-only plan 'would clearly make the entire Detroit public school system racially identifiable as Black' and would 'leave many of its schools 75 to 90 per cent Black.' The District Court also found that a Detroit-only plan 'would change a school system which is now Black and White to one that would be perceived as Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population.' Based on these findings, the District Court reasoned that 'relief of segregation in the public schools of the City of Detroit cannot be accomplished within the corporate geographical limits of the city' because a Detroit-only decree 'would accentuate the racial identifiability of the district as a Black school system, and would not accomplish desegregation.' The District Court therefore concluded that it 'must look beyond the limits of the Detroit school district for a solution to the problem of segregation in the Detroit public schools . . ..'

          In seeking to define the appropriate scope of that expanded desegregation area, however, the District Court continued to maintain as its sole focus the condition shown to violate the Constitution in this case—the segregation of the Detroit school system. As it stated, the

Page 788

primary question 'remains the determination of the area necessary and practicable effectively to eliminate 'root and branch' the effects of state-imposed and supported segregation and to desegregate the Detroit public schools.'

          There is simply no foundation in the record, then, for the majority's accusation that the only basis for the District Court's order was some desire to achieve a racial balance in the Detroit metropolitan area.¹ In fact, just the contrary is the case. In considering proposed desegregation areas, the District Court had occasion to criticize one of the State's proposals specifically because it had no basis other than its 'particular racial ratio' and did not focus on 'relevant factors, like eliminating racially identifiable schools (and) accomplishing maximum actual desegregation of the Detroit public schools.' Similarly, in rejecting the Detroit School Board's proposed desegregation area, even though it included more all-white districts and therefore achieved a higher white-Negro ratio, the District Court commented:

          'There is nothing in the record which suggests that these districts need be included in the desegregation area in order to disestablish the racial

Page 789

          identifiability of the Detroit public schools. From the evidence, the primary reason for the Detroit School Board's interest in the inclusion of these school districts is not racial desegregation but to increase the average socio-economic balance of all the schools in the abutting regions and clusters.'

          The Court also misstates the basis for the District Court's order by suggesting that since the only segregation proved at trial was within the Detroit school system, any relief which extended beyond the jurisdiction of the Detroit Board of Education would be inappropriate because it would impose a remedy on outlying districts 'not shown to have committed any constitutional violation.' Ante, at 745.² The essential foundation of interdistrict relief in this case was not to correct conditions within outlying districts which themselves engaged in purposeful segregation. Instead, interdistrict relief was seen as a necessary part of any meaningful effort by the State of Michigan to remedy the state-caused segregation within the city of Detroit.

          Rather than consider the propriety of interdistrict relief on this basis, however, the Court has conjured up a largely fictional account of what the District Court was attempting to accomplish. With all due respect, the Court, in my view, does a great disservice to the District Judge who labored long and hard with this complex litigation by accusing him of changing horses in midstream and shifting the focus of this case from the pursuit of a remedy for the condition of segregation

Page 790

within the Detroit school system to some unprincipled attempt to impose his own philosophy of racial balance on the entire Detroit metropolitan area. See ante, at 738—739. The focus of this case has always been the segregated system of education in the city of Detroit. The District Court determined that interdistrict relief was necessary and appropriate only because it found that the condition of segregation within the Detroit school system could not be cured with a Detroit-only remedy. It is on this theory that the interdistrict relief must stand or fall. Unlike the Court, I perceive my task to be to review the District Court's order for what it is, rather than to criticize it for what it manifestly is not.

          As the foregoing demonstrates, the District Court's decision to expand its desegregation decree beyond the geographical limits of the city of Detroit rested in large part on its conclusions (A) that the State of Michigan was ultimately responsible for curing the condition of segregation within the Detroit city schools, and (B) that a Detroit-only remedy would not accomplish this task. In my view, both of these conclusions are well supported by the facts of this case and by this Court's precedents.

          To begin with, the record amply supports the District Court's findings that the State of Michigan, through state officers and state agencies, had engaged in purposeful acts which created or aggravated segregation in the Detroit schools. The State Board of Education, for example, prior to 1962, exercised its authority to supervise local schoolsite selection in a manner which contributed to segregation. 484 F.2d 215, 238 (CA6 1973). Furthermore, the State's continuing authority, after 1962,

Page 791

to approve school building construction plans³ had intertwined the State with site-selection decisions of the Detroit Board of Education which had the purpose and effect of maintaining segregation.

          The State had also stood in the way of past efforts to desegregate the Detroit city schools. In 1970, for example, the Detroit School Board had begun implementation of its own desegregation plan for its high schools, despite considerable public and official resistance. The State Legislature intervened by enacting Act 48 of the Public Acts of 1970, specifically prohibiting implementation of the desegregation plan and thereby continuing the growing segregation of the Detroit school system. Adequate desegregation of the Detroit system was also hampered by discriminatory restrictions placed by the State on the use of transportation within Detroit. While state aid for transportation was provided by statute for suburban districts, many of which were highly urbanized, aid for intracity transportation was excepted. One of the effects of this restriction was to encourage the construction of small walk-in neighborhood schools in Detroit, thereby lending aid to the intentional policy of creating a school system which reflected, to the greatest extent feasible, extensive residential segregation. Indeed, that one of the purposes of the transportation restriction was to impede desegregation was evidenced when the Michigan Legislature amended the State Transportation Aid Act to cover intracity transportation but expressly prohibited the allocation of funds for cross-busing of students within a school district to achieve racial balance. ⁴ Cf. North Carolina State Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971).

Page 792

          Also significant was the State's involvement during the 1950's in the transportation of Negro high school students from the Carver School-District past a closer white high school in the Oak Park District to a more distant Negro high school in the Detroit system. Certainly the District Court's finding that the State Board of Education had knowledge of this action and had given its tacit or express approval was not clearly erroneous. Given the comprehensive statutory powers of the State Board of Education over contractual arrangements between school districts in the enrollment of students on a nonresident tuition basis, including certification of the number of pupils involved in the transfer and the amount of tuition charged, over the review of transportation routes and distances, and over the disbursement of transportation funds,⁵ the State Board inevitably knew and understood the significance of this discriminatory act.

          Aside from the acts of purposeful segregation committed by the State Legislature and the State Board of Education, the District Court also concluded that the State was responsible for the many intentional acts of segregation committed by the Detroit Board of Education, an agency of the State. The majority is only willing to accept this finding arguendo. See ante, at 748. I have no doubt, however, as to its validity under the Fourteenth Amendment.

          'The command of the Fourteenth Amendment,' it should be recalled, 'is that no 'State' shall deny to any person within its jurisdiction the equal protection of the laws.' Cooper v. Aaron, 358 U.S. 1, 16, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5 (1958). While a State can act only through 'the officers or agents by whom its powers are exerted,' Ex parte Virginia, 100 U.S. 339, 347, 25 L.Ed. 676 (1880), actions by an agent or officer of

Page 793

the State are encompassed by the Fourteenth Amendment for, 'as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State.' Ibid. See also Cooper v. Aaron, supra; Virginia v. Rives, 100 U.S. 313, 318, 25 L.Ed. 667 (1880); Shelley v. Kraemer, 334 U.S. 1, 14, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948). Under Michigan law a 'school district is an agency of the City of State government.' School District of Lansing v. State Board of Education, 367 Mich. 591, 600, 116 N.W.2d 866, 870 (1962). It is 'a legal division of territory, created by the State for educational purposes, to which the State has granted such powers as are deemed necessary to permit the district to function as a State agency.' Detroit Board of Education v. Superintendent of Public Instruction, 319 Mich. 436, 450, 29 N.W.2d 902, 908 (1947). Racial discrimination by the school district, an agency of the State, is therefore racial discrimination by the State itself, forbidden by the Fourteenth Amendment. See, e.g., Pennsylvania v. Board of Trusts, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 (1957).

          We recognized only last Term in Keyes that it was the State itself which was ultimately responsible for de jure acts of segregation committed by a local school board. A deliberate policy of segregation by the local board, we held, amounted to 'state-imposed segregation.' 413 U.S., at 200, 93 S.Ct., at 2693. Wherever a dual school system exists, whether compelled by state statute or created by a local board's systematic program of segregation, 'the State automatically assumes an affirmative duty 'to effectuate a transition to a racially nondiscriminatory school system' (and) to eliminate from the public schools within their school system 'all vestiges of state-imposed segregation." Ibid. (emphasis added).

          Vesting responsibility with the State of Michigan for Detroit's segregated schools is particularly appropriate as

Page 794

Michigan, unlike some other States, operates a single statewide system of education rather than several separate and independent local school systems. The majority's emphasis on local governmental control and local autonomy of school districts in Michigan will come as a surprise to those with any familiarity with that State's system of education. School districts are not separate and distinct sovereign entities under Michigan law, but rather are "auxiliaries of the State," subject to its 'absolute power.' Attorney General of Michigan ex rel. Kies v. Lowrey, 199 U.S. 233, 240, 26 S.Ct. 27, 29, 50 L.Ed. 167 (1905). The courts of the State have repeatedly emphasized that education in Michigan is not a local governmental concern, but a state function.

          'Unlike the delegation of other powers by the legislature to local governments, education is not inherently a part of the local self-government of a municipality . . .. Control of our public school system is a State matter delegated and lodged in the State legislature by the Constitution. The policy of the State has been to retain control of its school system, to be administered throughout the State under State laws by local State agencies organized with plenary powers to carry out the delegated functions given (them) by the legislature.' School District of the City of Lansing v. State Board of Education, supra, at 595, 116 N.W.2d, at 868.

          The Supreme Court of Michigan has noted the deep roots of this policy:

          'It has been settled by the Ordinance of 1787, the several Constitutions adopted in this state, by its uniform course of legislation, and by the decisions of this court, that education in Michigan is a matter of state concern, that it is no part of the local self-government of a particular township or munic-

Page 795

          ipality . . .. The legislature has always dictated the educational policy of the state.' In re School District No. 6, 284 Mich. 132, 145—146, 278 N.W. 792, 797 (1938).

          The State's control over education is reflected in the fact that, contrary to the Court's implication, there is little or no relationship between school districts and local political units. To take the 85 outlying local school districts in the Detroit metropolitan area as examples, 17 districts lie in two counties, two in three counties. One district serves five municipalities; other suburban municipalities are fragmented into as many as six school districts. Nor is there any apparent state policy with regard to the size of school districts, as they now range from 2,000 to 285,000 students.

          Centralized state control manifests itself in practice as well as in theory. The State controls the financing of education in several ways. The legislature contributes a substantial portion of most school districts' operating budgets with funds appropriated from the State's General Fund revenues raised through statewide taxation.⁶ The State's power over the purse can be and is in fact used to enforce the State's powers over local districts.⁷ In addition, although local districts obtain funds through local property taxation, the State has assumed the responsibility to ensure equalized property valuations throughout the State.⁸ The State also establishes

Page 796

standards for teacher certification and teacher tenure;⁹ determines part of the required curriculum;¹⁰ sets the minimum school term;¹¹ approves bus routes, equipment, and drivers;¹² approves textbooks;¹³ and establishes procedures for student discipline.¹⁴ The State Superintendent of Public Instruction and the State Board of Education have the power to remove local school board members from office for neglect of their duties.¹⁵

          Most significantly for present purposes, the State has wide-ranging powers to consolidate and merge school districts, even without the consent of the districts themselves or of the local citizenry.¹⁶ See, e.g., Attorney General ex rel. Kies, v. Lowrey, 131 Mich. 639, 92 N.W. 289 (1902), aff'd, 199 U.S. 233, 26 S.Ct. 27, 50 L.Ed. 167 (1905). Indeed, recent years have witnessed an accelerated program of school district consolidations, mergers, and annexations, many of which were state imposed. Whereas the State had 7,362 local districts in 1912, the number had been reduced to 1,438 in 1964 and to 738 in 1968.¹⁷ By June 1972, only 608 school districts remained. Furthermore, the State has broad powers to transfer property from one district to another, again without the consent of the local school districts affected by the transfer.¹⁸ See, e.g., School Dis-

Page 797

trict of the City of Lansing v. State Board of Education, supra; Imlay Township District v. State Board of Education, 359 Mich. 478, 102 N.W.2d 720 (1960).

          Whatever may be the history of public education in other parts of our Nation, it simply files in the face of reality to say, as does the majority, that in Michigan, '(n)o single tradition in public education is more deeply rooted than local control over the operation of schools . . ..' Ante, as 741. As the State's Supreme Court has said: 'We have repeatedly held that education in this state is not a matter of local concern, but belongs to the state at large.' Collins v. City of Detroit, 195 Mich. 330, 335—336, 161 N.W. 905, 907 (1917). See also Sturgis v. County of Allegan, 343 Mich. 209, 215, 72 N.W.2d 56, 59 (1955); Van Fleet v. Oltman, 244 Mich. 241, 244, 221 N.W. 299, 300 (1928); Child Welfare Society of Flint v. Kennedy School District, 220 Mich 290, 296, 189 N.W. 1002, 1004 (1922). Indeed, a study prepared for the 1961 Michigan Constitutional Convention noted that the Michigan Constitution's articles on education had resulted in 'the establishment of a state system of education in contrast to a series of local school systems.' Elemen-Michigan Constitution, Michigan Constitutional Convention Studies 1 (1961).

          In sum, several factors in this case coalesce to support the District Court's ruling that it was the State of Michigan itself, not simply the Detroit Board of Education, which bore the obligation of curing the condition of segregation within the Detroit city schools. The actions of the State itself directly contributed to Detroit's segregation. Under the Fourteenth Amendment, the State is ultimately responsible for the actions of its local agencies. And, finally, given the structure of Michigan's educational system, Detroit's segregation cannot be

Page 798

viewed as the problem of an independent and separate entity. Michigan operates a single statewide system of education, a substantial part of which was shown to be segregated in this case.

          What action, then, could the District Court require the State to take in order to cure Detroit's condition of segregation? Our prior cases have not minced words as to what steps responsible officials and agencies must take in order to remedy segregation in the public schools. Not only must distinctions on the basis of race be terminated for the future, but school officials are also 'clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.' Green v. County School Board of New Kent County, 391 U.S. 430, 437—438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). See also Lee v. Macon County Board of Education, 267 F.Supp. 458 (MD Ala.), aff'd sub nom. Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422 (1967). Negro students are not only entitled to neutral nondiscriminatory treatment in the future. They must receive 'what Brown II promised them: a school system in which all vestiges of enforced racial segregation have been eliminated.' Wright v. Council of the City of Emporia, 407 U.S. 451, 463, 92 S.Ct. 2196, 2203, 33 L.Ed.2d 51 (1972). See also Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971). These remedial standards are fully applicable not only to school districts where a dual system was compelled by statute, but also where, as here, a dual system was the product of purposeful and intentional state action. See Keyes, 413 U.S., at 200—201, 93 S.Ct., at 2693—2694.

          After examining three plans limited to the city of Detroit, the District Court correctly concluded that none would eliminate root and branch the vestiges of

Page 799

unconstitutional segregation. The plans' effectiveness, of course, had to be evaluated in the context of the District Court's findings as to the extent of segregation in the Detroit city schools. As indicated earlier, the most essential finding was that Negro children in Detroit had been confined by intentional acts of segregation to a growing core of Negro schools surrounded by a receding ring of white schools.¹⁹ Thus, in 1960, of Detroit's 251

Page 800

regular attendance schools, 100 were 90% or more white and 71 were 90% or more Negro. In 1970, of Detroit's 282 regular attendance schools, 69 were 90% or more white and 133 were 90% or more Negro. While in 1960, 68% of all schools were 90% or more one race, by 1970, 71.6% of the schools fell into that category. The growing core of all-Negro schools was further evidenced in total school district population figures. In 1960 the Detroit system had 46% Negro students and 54% white students, but by 1970, 64% of the students were Negro and only 36% were white. This increase in the proportion of Negro students was the highest of any major Northern city.

          It was with these figures in the background that the District Court evaluated the adequacy of the three Detroit-only plans submitted by the parties. Plan A, proposed by the Detroit Board of Education, desegregated the high schools and about a fifth of the middle-level schools. It was deemed inadequate, however, because it did not desegregate elementary schools and left the middle-level schools not included in the plan more segregated than ever. Plan C, also proposed by the Detroit Board, was deemed inadequate because it too covered only some grade levels and would leave elementary schools segregated. Plan B, the plaintiffs' plan, though requiring the transportation of 82,000 pupils and the acquisition of 900 school buses, would make little

Page 801

headway in rooting out the vestiges of segregation. To begin with, because of practical limitations, the District Court found that the plan would leave many of the Detroit city schools 75 to 90% Negro. More significantly, the District Court recognized that in the context of a community which historically had a school system marked by rigid de jure segregation, the likely effect of a Detroit-only plan would be to 'change a school system which is now Black and White to one that would be perceived as Black . . ..' The result of this changed perception, the District Court found, would be to increase the flight of whites from the city to the outlying suburbs, compounding the effects of the present rate of increase in the proportion of Negro students in the Detroit system. Thus, even if a plan were adopted which, at its outset, provided in every school a 65% Negro-35% white racial mix in keeping with the Negro-white proportions of the total student population, such a system would, in short order, devolve into an all-Negro system. The net result would be a continuation of the all-Negro schools which were the hallmarks of Detroit's former dual system of one-race schools.

          Under our decisions, it was clearly proper for the District Court to take into account the so-called 'white flight' from the city schools which would be forthcoming from any Detroit-only decree. The court's prediction of white flight was well supported by expert testimony based on past experience in other cities undergoing desegregation relief. We ourselves took the possibility of white flight into account in evaluating the effectiveness of a desegregation plan in Wright, supra, where we relied on the District Court's finding that if the city of Emporia were allowed to withdraw from the existing system, leaving a system with a higher proportion of Negroes, it 'may be anticipated that the pro-

Page 802

portion of whites in county schools may drop as those who can register in private academies' . . ..' 407 U.S., at 464, 92 S.Ct., at 2204. One cannot ignore the white-flight problem, for where legally imposed segregation has been established, the District Court has the responsibility to see to it not only that the dual system is terminated at once but also that future events do not serve to perpetuate or re-establish segregation. See Swann, 402 U.S. at 21, 91 S.Ct., at 1278. See also Green, 391 U.S., at 438 n. 4, 88 S.Ct., at 1694; Monroe v. Board of Comm'rs, 391 U.S. 450, 459, 88 S.Ct. 1700, 1705, 20 L.Ed.2d 733 (1968).

          We held in Swann, supra, that where de jure segregation is shown, school authorities must make 'every effort to achieve the greatest possible degree of actual desegregation.' 402 U.S., at 26, 91 S.Ct., at 1281. This is the operative standard re-emphasized in Davis v. School Comm'rs of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971). If these words have any meaning at all, surely it is that school authorities must, to the extent possible, take all practicable steps to ensure that Negro and white children in fact go to school together. This is, in the final analysis, what desegregation of the public schools is all about.

          Because of the already high and rapidly increasing percentage of Negro students in the Detroit system, as well as the prospect of white flight, a Detroit-only plan simply has no hope of achieving actual desegregation. Under such a plan white and Negro students will not go to school together. Instead, Negro children will continue to attend all-Negro schools. The very evil that Brown I was aimed at will not be cured, but will be perpetuated for the future.

          Racially identifiable schools are one of the primary vestiges of state-imposed segregation which an effective desegregation decree must attempt to eliminate. In Swann, supra, for example, we held that '(t)he district judge or school authorities . . . will thus necessarily be concerned with the elimination of one-race schools.' 402

Page 803

U.S., at 26, 91 S.Ct., at 1281. There is 'a presumption,' we stated, 'against schools that are substantially disproportionate in their racial composition.' Ibid. And in evaluating the effectiveness of desegregation plans in prior cases, we ourselves have considered the extent to which they discontinued racially identifiable schools. See, e.g., Green v. County School Board of New Kent County, supra; Wright v. Council of the City of Emporia, supra. For a principal end of any desegregation remedy is to ensure that it is no longer 'possible to identify a 'white school' or a 'Negro school." Swann, supra, 402 U.S., 18, 91 S.Ct., at 1277. The evil to be remedied in the dismantling of a dual system is the '(r) acial identification of the system's schools.' Green, supra, 391 U.S., at 435, 88 S.Ct., at 1693. The goal is a system without white schools or Negro schools—a system with 'just schools.' Id., at 442, 88 S.Ct., at 1696. A school authority's remedial plan or a district court's remedial decree is to be judged by its effectiveness in achieving this end. See Swann, 402 U.S., at 25, 91 S.Ct., at 1280; Davis, supra, 402 U.S., at 37, 91 S.Ct., at 1292; Green, supra, 391 U.S., at 439, 88 S.Ct., at 1694.

          We cautioned in Swann, of course, that the dismantling of a segregated school system does not mandate any particular racial balance. 402 U.S., at 24, 91 S.Ct., at 1280. We also concluded that a remedy under which there would remain a small number of racially identifiable schools was only presumptively inadequate and might be justified. Id., at 26, 91 S.Ct., at 1281. But this is a totally different case. The flaw of a Detroit-only decree is not that it does not reach some ideal degree of racial balance or mixing. It simply does not promise to achieve actual desegregation at all. It is one thing to have a system where a small number of students remain in racially identifiable schools. It is something else entirely to have a system where all students continue to attend such schools.

          The continued racial identifiability of the Detroit schools under a Detroit-only remedy is not simply a reflection of their high percentage of Negro students.

Page 804

What is or is not a racially identifiable vestige of de jure segregation must necessarily depend on several factors. Cf. Keyes, 413 U.S., at 196, 93 S.Ct., at 2691. Foremost among these should be the relationship between the schools in question and the neighboring community. For these purposes the city of Detroit and its surrounding suburbs must be viewed as a single community. Detroit is closely connected to its suburbs in many ways, and the metropolitan area is viewed as a single cohesive unit by its residents. About 40% of the residents of the two suburban counties included in the desegregation plan work in Wayne County, in which Detroit is situated. Many residents of the city work in the suburbs. The three counties participate in a wide variety of cooperative governmental ventures on a metropolitan-wide basis, including a metropolitan transit system, park authority, water and sewer system, and council of governments. The Federal Government has classified the tri-county area as a Standard Metropolitan Statistical Area, indicating that it is an area of 'economic and social integration.' United States v. Connecticut National Bank, 418 U.S. 656, 670, 94 S.Ct. 2788, 2797, 41 L.Ed.2d 1016 (1974).

          Under a Detroit-only decree, Detroit's schools will clearly remain racially identifiable in comparison with neighboring schools in the metropolitan community. Schools with 65% and more Negro students will stand in sharp and obvious contrast to schools in neighboring districts with less than 2% Negro enrollment. Negro students will continue to perceive their schools as segregated educational facilities and this perception will only be increased when whites react to a Detroit-only decree by fleeing to the suburbs to avoid integration. School district lines, however innocently drawn, will surely be perceived as fences to separate the races when, under a Detroit-only decree, white parents withdraw their chil-

Page 805

dren from the Detroit city schools and move to the suburbs in order to continue them in all-white schools. The message of this action will not escape the Negro children in the city of Detroit. See Wright, 407 U.S., at 466, 92 S.Ct., at 2205. It will be of scant significance to Negro children who have for years been confined by de jure acts of segregation to a growing core of all-Negro schools surrounded by a ring of all-white schools that the new dividing line between the races is the school district boundary.

          Nor can it be said that the State is free from any responsibility for the disparity between the racial makeup of Detroit and its surrounding suburbs. The State's creation, through de jure acts of segregation, of a growing core of all-Negro schools inevitably acted as a magnet to attract Negroes to the areas served by such schools and to deter them from settling either in other areas of the city or in the suburbs. By the same token, the growing core of all-Negro schools inevitably helped drive whites to other areas of the city or to the suburbs. As we recognized in Swann:

          'People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods. . . . (Action taken) to maintain the separation of the races with a minimum departure from the formal principles of 'neighborhood zoning' . . . does more than simply influence the short-run composition of the student body . . .. It may well promote segregated residential patterns which, when combined with 'neighborhood zoning,' further lock the school system into the mold of separation of the races. Upon a proper

Page 806

          showing a district court may consider this in fashioning a remedy.' 402 U.S., at 20—21, 91 S.Ct., at 1278.

          See also Keyes, 413 U.S., at 202, 93 S.Ct., at 2694. The rippling effects on residential patterns caused by purposeful acts of segregation do not automatically subside at the school district border. With rare exceptions, these effects naturally spread through all the residential neighborhoods within a metropolitan area. See id., at 202—203, 93 S.Ct., at 2694—2695.

          The State must also bear part of the blame for the white flight to the suburbs which would be forthcoming from a Detroit-only decree and would render such a remedy ineffective. Having created a system where whites and Negroes were intentionally kept apart so that they could not become accustomed to learning together, the State is responsible for the fact that many whites will react to the dismantling of that segregated system by attempting to flee to the suburbs. Indeed, by limiting the District Court to a Detroit-only remedy and allowing that flight to the suburbs to succeed, the Court today allows the State to profit from its own wrong and to perpetuate for years to come the separation of the races it achieved in the past by purposeful state action.

          The majority asserts, however, that involvement of outlying districts would do violence to the accepted principle that 'the nature of the violation determines the scope of the remedy.' Swann, supra, 402 U.S., at 16, 91 S.Ct., at 1276. See ante, at 744 745. Not only is the majority's attempt to find in this single phrase the answer to the complex and difficult questions presented in this case hopelessly simplistic, but more important, the Court reads these words in a manner which perverts their obvious meaning. The nature of a violation determines the scope of the remedy simply because the function of any remedy is to cure the violation to which it is addressed. In school segregation

Page 807

cases, as in other equitable causes, a remedy which effectively cures the violation is what is required. See Green, 391 U.S., at 439, 88 S.Ct., at 1694; Davis, 402 U.S., at 37, 91 S.Ct., at 1292. No more is necessary, but we can tolerate no less. To read this principle as barring a district court from imposing the only effective remedy for past segregation and remitting the court to a patently ineffective alternative is, in my view, to turn a simple commonsense rule into a cruel and meaningless paradox. Ironically, by ruling out an interdistrict remedy, the only relief which promises to cure segregation in the Detroit public schools, the majority flouts the very principle on which it purports to rely.

          Nor should it be of any significance that the suburban school districts were not shown to have themselves taken any direct action to promote segregation of the races. Given the State's broad powers over local school districts, it was well within the State's powers to require those districts surrounding the Detroit school district to participate in a metropolitan remedy. The State's duty should be no different here than in cases where it is shown that certain of a State's voting districts are malapportioned in violation of the Fourteenth Amendment. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Overrepresented electoral districts are required to participate in reapportionment although their only 'participation' in the violation was to do nothing about it. Similarly, electoral districts which themselves meet representation standards must frequently be redrawn as part of a remedy for other over-and under-inclusive districts. No finding of fault on the part of each electoral district and no finding of a discriminatory effect on each district is a prerequisite to its involvement in the constitutionally required remedy. By the same logic, no finding of fault on the part of the suburban school districts in this case

Page 808

and no finding of a discriminatory effect on each district should be a prerequisite to their involvement in the constitutionally required remedy.

          It is the State, after all, which bears the responsibility under Brown of affording a nondiscriminatory system of education. The State, of course, is ordinarily free to choose any decentralized framework for education it wishes, so long as it fulfills that Fourteenth Amendment obligation. But the State should no more be allowed to hide behind its delegation and compartmentalization of school districts to avoid its constitutional obligations to its children than it could hide behind its political subdivisions to avoid its obligations to its voters. Reynolds v. Sims, at 575, 84 S.Ct., at 1388. See also Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).

          It is a hollow remedy indeed where 'after supposed 'desegregation' the schools remained segregated in fact.' Hobson v. Hansen, 269 F.Supp. 401, 495 (D.D.C. 1967). We must do better than "substitute . . . one segregated school system for another segregated school system." Wright, 407 U.S., at 456, 92 S.Ct., at 2200. To suggest, as does the majority, that a Detroitonly plan somehow remedies the effects of de jure segregation of the races is, in my view, to make a solemn mockery of Brown I's holding that separate educational facilities are inherently unequal and of Swann's unequivocal mandate that the answer to de jure segregation is the greatest possible degree of actual desegregation.

          One final set of problems remains to be considered. We recognized in Brown II, and have re-emphasized ever since, that in fashioning relief in desegregation cases, 'the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for

Page 809

adjusting and reconciling public and private needs.' Brown II, 349 U.S., at 300, 75 S.Ct., at 756. See also Swann, supra.

          Though not resting its holding on this point, the majority suggests that various equitable considerations militate against interdistrict relief. The Court, for example, refers to financing and administrative problems, the logistical problems attending large-scale transportation of students, and the prospect of the District Court's becoming a 'de facto 'legislative authority" and "school superintendent' for the entire area.' Ante, at 743—744. The entangling web of problems woven by the Court, however, appears on further consideration to be constructed of the flimsiest of threads.

          I deal first with the last of the problems posed by the Court the specter of the District Court qua 'school superintendent' and 'legislative authority'—for analysis of this problem helps put the other issues in proper perspective. Our cases, of course, make clear that the initial responsibility for devising an adequate desegregation plan belongs with school authorities, not with the District Court. The court's primary role is to review the adequacy of the school authorities' efforts and to substitute its own plan only if and to the extent they default. See Swann, 402 U.S., at 16, 91 S.Ct., at 1276; Green, 391 U.S., at 439, 88 S.Ct., at 1294. Contrary to the majority's suggestions, the District Judge in this case consistently adhered to these procedures and there is every indication that he would have continued to do so. After finding de jure segregation the court ordered the parties to submit proposed Detroit-only plans. The state defendants were also ordered to submit a proposed metropolitan plan extending beyond Detroit's boundaries. As the District Court stated, 'the State defendants . . . bear the initial burden of coming forward with a proposal that promises to work.' The state defendants defaulted in this obligation, however.

Page 810

Rather than submit a complete plan, the State Board of Education submitted six proposals, none of which was in fact a desegregation plan. It was only upon this default that the District Court began to take steps to develop its own plan. Even then the District Court maximized school authority participation by appointing a panel representing both plaintiffs and defendants to develop a plan. Pet.App. 99a—100a. Furthermore, the District Court still left the state defendants the initial responsibility for developing both interim and final financial and administrative arrangements to implement interdistrict relief. Id., at 104A—105a. The Court of Appeals further protected the interests of local school authorities by ensuring that the outlying suburban districts could fully participate in the proceedings to develop a metropolitan remedy.

          These processes have not been allowed to run their course. No final desegregation plan has been proposed by the panel of experts, let alone approved by the District Court. We do not know in any detail how many students will be transported to effect a metropolitan remedy, and we do not know how long or how far they will have to travel. No recommendations have yet been submitted by the state defendants on financial and administrative arrangements. In sum, the practicality of a final metropolitan plan is simply not before us at the present time. Since the State and the panel of experts have not yet had an opportunity a come up with a workable remedy, there is no foundation for the majority's suggestion of the impracticality of interdistrict relief. Furthermore, there is no basis whatever for assuming that the District Court will inevitably be forced to assume the role of legislature or school superintendent.²⁰

Page 811

Were we to hold that it was its constitutional duty to do so, there is every indication that the State of Michigan would fulfill its obligation and develop a plan which is workable, administrable, financially sound, and, most important, in the best interest of quality education for all of the children in the Detroit metropolitan area.

          Since the Court chooses, however, to speculate on the feasibility of a metropolitan plan, I feel constrained to comment on the problem areas it has targeted. To begin with, the majority's question concerning the practicality of consolidation of school districts need not give us pause. The State clearly has the power, under existing law, to effect a consolidation if it is ultimately determined that this offers the best prospect for a workable and stable desegregation plan. See supra, at 796—797. And given the 1,000 or so consolidations of school districts which have taken place in the past, it is hard to believe that the State has not already devised means of solving most, if not all, of the practical problems which the Court suggests consolidation would entail.

          Furthermore, the majority ignores long-established Michigan procedures under which school districts may enter into contractual agreements to educate their pupils in other districts using state or local funds to finance nonresident education.²¹ Such agreements could form an

Page 812

easily administrable framework for interdistrict relief short of outright consolidation of the school districts. The District Court found that interdistrict procedures like these were frequently used to provide special educational services for handicapped children, and extensive statutory provision is also made for their use in vocational education.²² Surely if school districts are willing to engage in interdistrict programs to help those unfortunate children crippled by physical or mental handicaps, school districts can be required to participate in an inter-district program to help those children in the city of Detroit whose educations and very futures have been crippled by purposeful state segregation.

          Although the majority gives this last matter only fleeting reference, it is plain that one of the basic emotional and legal issues underlying these cases concerns the propriety of transportation of students to achieve desegregation. While others may have retreated from its standards, see, e.g., Keyes, 413 U.S., at 217, 93 S.Ct., at 2701 (Powell, J., concurring in part and dissenting in part), I continue to adhere to the guidelines set forth in Swann on this issue. See 402 U.S., at 29—31, 91 S.Ct., at 1282—1283. And though no final desegregation plan is presently before us, to the extent the outline of such a plan is now visible, it is clear that the transportation it would entail will be fully consistent with these guidelines.

          First of all, the metropolitan plan would not involve the busing of substantially more students than already ridebuses. The District Court found that, statewide, 35%—40% of all students already arrive at school on a bus. In those school districts in the tri-county Detroit metropolitan area eligible for state reimbursement of transportation costs, 42%—52% of all students rode buses to school. In the tri-county areas as a whole, ap-

Page 813

proximately 300,000 pupils arrived at school on some type of bus, with about 60,000 of these apparently using regular public transit. In comparison, the desegregation plan, according to its present rough outline, would involve the transportation of 310,000 students, about 40% of the population within the desegregation area.

          With respect to distance and amount of time traveled, 17 of the outlying school districts involved in the plan are contiguous to the Detroit district. The rest are all within 8 miles of the Detroit city limits. The trial court, in defining the desegregation area, placed a ceiling of 40 minutes one way on the amount of travel time, and many students will obviously travel for far shorter periods. As to distance, the average statewide bus trip is 8 1/2 miles one way, and in some parts of the tri-county area, students already travel for one and a quarter hours or more each way. In sum, with regard to both the number of students transported and the time and distances involved, the outlined desegregation plan 'compares favorably with the transportation plan previously operated . . ..' Swann, 402 U.S., at 30, 91 S.Ct., at 1283.

          As far as economics are concerned, a metropolitan remedy would actually be more sensible than a Detroit-only remedy. Because of prior transportation aid restrictions, see at 791, Detroit largely relied on public transport, at student expense, for those students who lived too far away to walk to school. Since no inventory of school buses existed, a Detroit-only plan was estimated to require the purchase of 900 buses to effectuate the necessary transportation. The tri-county area, in contrast, already has an inventory of 1,800 buses, many of which are now under-utilized. Since increased utilization of the existing inventory can take up much of the increase in transportation involved in the interdistrict remedy, the District Court found that only 350 additional buses would

Page 814

probably be needed, almost two-thirds fewer than a Detroit-only remedy. Other features of an interdistrict remedy bespeak its practicality, such as the possibility of pairing up Negro schools near Detroit's boundary with nearby white schools on the other side of the present school district line.

          Some disruption, of course, is the inevitable product of any desegregation decree, whether it operates within one district or on an interdistrict basis. As we said in Swann, however:

          'Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided . . ..' 402 U.S., at 28, 91 S.Ct., at 1282.

          Desegregation is not and was never expected to be an easy task. Racial attitudes ingrained in our Nation's childhood and adolescence are not quickly thrown aside in its middle years. But just as the inconvenience of some cannot be allowed to stand in the way of the rights of others, so public opposition, no matter how strident, cannot be permitted to divert this Court from the enforcement of the constitutional principles at issue in this case. Today's holding, I fear, is more a reflection of a perceived public mood that we have gone far enough in enforcing the Constitution's guarantee of equal justice than it is the product of neutral principles of law. In

Page 815

the short run, it may seem to be the easier course to allow our great metropolitan areas to be divided up each into two cities—one white, the other black—but it is a course, I predict, our people will ultimately regret. I dissent.

^{1. 484 F.2d 215 (CA6), cert. granted, 414 U.S. 1038, 94 S.Ct. 538, 38 L.Ed.2d 329 (1973).}

^2. The standing of the NAACP as a proper party plaintiff was not contested in the trial court and is not an issue in this case.

^3. Optional zones, sometimes referred to as dual zones or dual overlapping zones, provide pupils living within certain areas a choice of attendance at one of two high schools.

^4. The Court of Appeals found record evidence that in at least one instance during the period 1957—1958, Detroit served a suburban school district by contracting with it to educate its Negro high school students by transporting them away from nearby suburban white high schools, and past Detroit high schools which were predominantly white, to all-Negro or predominantly Negro Detroit schools. 484 F.2d, at 231.

^5. School districts in the State of Michigan are instrumentalities of the State and subordinate to its State Board of Education and legislature. The Constitution of the State of Michigan, Art. 8, § 2, provides in relevant part:

'The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law.'

Similarly, the Michigan Supreme Court has stated: 'The school district is a State agency. Moreover, it is of legislative creation. . . .' Attorney General ex rel. Kies v. Lowrey, 131 Mich. 639, 644, 92 N.W. 289, 290 (1902): "Education in Michigan belongs to the State. It is no part of the local self-government inherent in the township or municipality, except so far as the Legislature may choose to make it such. The Constitution has turned the whole subject over to the Legislature. . . ." Attorney General ex rel. Zacharias v. Detroit Board of Education, 154 Mich. 584, 590, 118 N.W. 606, 609 (1908).

^6. 'Sec. 12. The implementation of any attendance provisions for the 1970—71 school year determined by any first class school district board shall be delayed pending the date of commencement of functions by the first class school district boards established under the provisions of this amendatory act but such provision shall not impair the right of any such board to determine and implement prior to such date such changes in attendance provisions as are mandated by practical necessity. . . .' Act No. 48, § 12, Mich.Pub. Acts of 1970; Mich.Comp.Laws § 388.182 (1970).

^7. The District Court briefly alluded to the possibility that the State, along with private persons, had caused, in part, the housing patterns of the Detroit metropolitan area which, in turn, produced the predominantly white and predominantly Negro neighborhoods that characterize Detroit:

'It is no answer to say that restricted practices grew gradually (as the black population in the area increased between 1920 and 1970), or that since 1948 racial restrictions on the ownership of real property have been removed. The policies pursued by both government and private persons and agencies have a continuing and present effect upon the complexion of the community as we know, the choice of a residence is a relatively infrequent affair. For many years FHA and VA openly advised and advocated the maintenance of 'harmonious' neighborhoods, i.e., racially and economically harmonious. The conditions created continue.' 338 F.Supp. 582, 587 (ED Mich.1971).

Thus, the District Court concluded:

'The affirmative obligation of the defendant Board has been and is to adopt and implement pupil assignment practices and policies that compensate for and avoid incorporation into the school system the effects of residential racial segregation.' Id., at 593.

The Court of Appeals, however, expressly noted that:

'In affirming the District Judge's findings of constitutional violations by the Detroit Board of Education and by the State defendants resulting in segregated schools in Detroit, we have not relied at all upon testimony pertaining to segregated housing except as school construction programs helped cause or maintain such segregation.' 484 F.2d., at 242.

Accordingly, in its present posture, the case does not present any question concerning possible state housing violations.

^8. On March 22, 1971, a group of Detroit residents, who were parents of children enrolled in the Detroit public schools, were permitted to intervene as parties defendant. On June 24, 1971, the District Judge alluded to the 'possibility' of a metropolitan school system stating: '(A)s I have said to several witnesses in this case: 'How do you desegrate a black city, or a black school system." Petitioners' Appendix 243a (hereinafter Pat.App.). Subsequently, on July 16, 1971, various parents filed a motion to require joinder of all of the 85 outlying independent school districts within the tri-county area.

^9. The respondents, as plaintiffs below, opposed the motion to join the additional school districts, arguing that the presence of the state defendants was sufficient and all that was required, even if, in shaping a remedy, the affairs of these other districts was to be affected. 338 F.Supp. at 595.

^10. At the time of the 1970 census, the population of Michigan was 8,875,083, almost half of which, 4,199,931, resided in the tri-county area of Wayne, Oakland, and Macomb. Oakland and Macomb Counties abut Wayne County to the north, and Oakland County abuts Macomb County to the west. These counties cover 1,952 square miles, Michigan Statistical Abstract (9th ed. 1972), and the area is approximately the size of the State of Delaware (2,057 square miles), more than half again the size of the State of Rhode Island (1,214 square miles) and almost 30 times the size of the District of Columbia (67 square miles). Statistical Abstract of the United States (93d ed. 1972). The populations of Wayne, Oakland, and Macomb Counties were 2,666,751; 907,871; and 625,309, respectively, in 1970. Detroit, the State's largest city, is located in Wayne County.

In the 1970—1971 school year, there were 2,157,449 children enrolled in school districts in Michigan. There are 86 independent, legally distinct school districts within the tri-county area, having a total enrollment of approximately 1,000,000 children. In 1970, the Detroit Board of Education operated 319 schools with approximately 276,000 students.

^11. In its formal opinion, subsequently announced, the District Court candidly recognized:

'It should be noted that the court has taken no proofs with respect to the establishment of the boundaries of the 86 public school districts in the counties of Wayne, Oakland and Macomb, nor on the issue of whether, with the exclusion of the city of Detroit school district, such school districts have committed acts of de jure segregation.' 345 F.Supp. 914, 920 (ED Mich.1972).

^12. According to the District Court, intervention was permitted under Fed.Rule Civ.Proc. 24(a), 'Intervention of Right,' and also under Rule 24(b), 'Permissive Intervention.'

^13. This rather abbreviated briefing schedule was maintained despite the fact that the District Court had deferred consideration of a motion made eight months earlier, to bring the suburban districts into the case. See text accompanying n. 8 supra.

^14. As of 1970, the 53 school districts outside the city of Detroit that were included in the court's 'desegration area' had a combined student population of approximately 503,000 students compared to Detroit's approximately 276,000 students. Nevertheless, the District Court directed that the intervening districts should be represented by only one member on the desegregation panel while the Detroit Board of Education was granted three panel members. 345 F.Supp., at 917.

^15. The District Court had certified most of the foregoing rulings for interlocutory review pursuant to 28 U.S.C. § 1292(b) (1 App. 265—266) and the case was initially decided on the merits by a panel of three judges. However, the panel's opinion and judgment were vacated when it was determined to rehear the case en banc, 484 F.2d, at 218.

^16. With respect to the State's violations, the Court of Appeals held: (1) that, since the city Board is an instrumentality of the State and subordinate to the State Board, the segregative actions of the Detroit Board 'are the actions of an agency of the State,' id., at 238; (2) that the state legislation rescinding Detroit's voluntary desegregation plan contributed to increasing segregation in the Detroit schools, ibid.; (3) that under state law prior to 1962 the State Board had authority over school construction plans and therefore had to be held responsible 'for the segregative results,' ibid.; (4) that the 'State statutory scheme of support of transportation for school children directly discriminated against Detroit;' id., at 240, by not providing transportation funds to Detroit on the same basis as funds were provided to surburban districts, id., at 238; and (5) that the transportation of Negro students from one suburban district to a Negro school in Detroit must have had the 'approval, tacit or express, of the State Board of Education,' ibid.

^17. The court sought to distinguish Bradley v. School Board of the City of Richmond, 462 F.2d 1058 (CA4 1972), aff'd by an equally divided Court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (1973), on the grounds that the District Court in that case had ordered an actual consolidation of three school districts and that Virginia's Constitution and statutes, unlike Michigan's gave the local boards exclusive power to operate the public schools. 484 F.2d, at 251.

^18. Although the list of issues presented for review in petitioners' briefs and petitions for writs of certiorari do not include arguments on the findings of segregative violations on the part of the Detroit defendants, two of the petitioners argue in brief that these findings constitute error. This Court's Rules 23(1)(c) and 40(1)(d)(2), at a minimum limit our review to the Detroit violation findings to 'plain error,' and, under our decision last Term in Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 1973), the findings appear to be correct.

^19. Disparity in the racial composition of pupils within a single district may well constitute a 'signal' to a district court at the outset, leading to inquiry into the causes accounting for a pronounced racial identifiability of schools within one school system. In Swann, for example, we were dealing with a large but single independent school system, . . . and a unanimous Court noted: 'Where the school authority's proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominantly of one race (the school authority has) the burden of showing that such school assignments are genuinely nondiscriminatory.' 402 U.S., at 26, 91 S.Ct., at 1281. See also Keyes, supra, at 208, 93 S.Ct., at 2697. However, the use of significant racial imbalance in schools within an autonomous school district as a signal which operates simply to shift the burden of proof, is a very different matter from equating racial imbalance with a constitutional violation calling for a remedy. Keyes, supra, also involved a remedial order within a single autonomous school district.

^20. Under the Michigan School Code of 1955, the local school district is an autonomous political body corporate, operating through a Board of Education popularly elected. Mich.Comp.Laws §§ 340.27, 340.55, 340.107, 340.148, 340.149, 340.188. As such, the day-to-day affairs of the school district are determined at the local level in accordance with the plenary power to acquire real and personal property, §§ 340.26, 340.77, 340.113, 340.165, 340.192, 340.352; to hire and contract with personnel, §§ 340.569, 340.574; to levy taxes for operations, § 340.563; to borrow against receipts, § 340.567; to determine the length of school terms, § 340.575; to control the admission of nonresident students, § 340.582; to determine courses of study, § 340.583; to provide a kindergarten program, § 340.584; to establish and operate vocational schools, § 340.585; to offer adult education programs, § 340.586; to establish attendance areas, § 340.589; to arrange for transportation of nonresident students, § 340.591; to acquire transportation equipment, § 340.594; to receive gifts and bequests for educational purposes, § 340.605; to employ an attorney, § 340.609; to suspend or expel students, § 340.613; to make rules and regulations for the operation of schools, § 340.614; to cause to be levied authorized millage, § 340.643a; to acquire property by eminent domain, § 340.711 et seq.; and to approve and select textbooks, § 340.882.

^21. Since the Court has held that a resident of a school district has a fundamental right protected by the Federal Constitution to vote in a district election, it would seem incongruous to disparage the importance of the school district in a different context. Kramer v. Union Free School District No. 15, 395 U.S. 621, 626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969). White the district there involved was located in New York, none of the facts in our possession suggest that the relation of school districts to the State is significantly different in New York from that in Michigan.

^22. The suggestion in the dissent of Mr. Justice MARSHALL that schools which have a majority of Negro students are not 'desegregated,' whatever the racial makeup of the school district's population and however neutrally the district lines have been drawn and administered, finds no support in our prior cases. In Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), for example, this Court approved a desegregation plan which would have resulted in each of the schools within the district having a racial composition of 57% Negro and 43% White. In Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972), the optimal desegregation plan would have resulted in the schools' being 66% Negro and 34% white, substantially the same percentages as could be obtained under one of the plans involved in this case. And in United States v. Scotland Neck City Board of Education, 407 U.S. 484, 491 n. 5, 92 S.Ct. 2214, 2218, 33 L.Ed.2d 75 (1972), a desegregation plan was implicitly approved for a school district which had a racial composition of 77% Negro and 22% white. In none of these cases was it even intimated that 'actual desegregation' could not be accomplished as long as the number of Negro students was greater than the number of white students.

The dissents also seem to attach importance to the metropolitan character of Detroit and neighboring school districts. But the constitutional principles applicable in school desegregation cases cannot vary in accordance with the size or population dispersal of the particular city, county, or school district as compared with neighboring areas.

^23. People ex rel. Workman v. Board of Education of Detroit, 18 Mich. 400 (1869); Act 34, § 28, Mich.Pub.Acts of 1867. The Michigan Constitution and laws provide that 'every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin,' Mich.Const.1963, Art. 8, § 2; that 'no separate school or department shall be kept for any person or persons on account of race or color,' Mich.Comp.Laws § 340.355; and that '(a)ll persons, residents of a school district . . . shall have an equal right to attend school therein,' id., § 340.356. See also Act 319, Part II, c. 2, § 9, Mich.Pub.Acts of 1927.

^24. Apparently, when the District Court sua sponte, abruptly altered the theory of the case to include the possibility of multidistrict relief, neither the plaintiffs nor the trial judge considered amending the complaint to embrace the new theory.

^1. As this Court stated in Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083: '(E)quity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These (school desegregation) cases call for the exercise of these traditional attributes of equity power.'

^2. My Brother MARSHALL seems to ignore this fundamental fact when he states, post at 799, that 'the most essential finding (made by the District Court) was that Negro children in Detroit had been confined by intentional acts of segregation to a growing core of Negro schools surrounded by a receding ring of white schools.' This conclusion is simply not substantiated by the record presented in this case. The record here does support the claim made by the respondents that white and Negro students within Detroit who otherwise would have attended school together were separated by acts of the State or its subdivision. However, segregative acts within the city alone cannot be presumed to have produced—and no factual showing was made that they did produce—an increase in the number of Negro students in the city as a whole. It is this essential fact of a predominantly Negro school population in Detroit—caused by unknown and perhaps unknowable factors such as in-migration, birth rates, economic changes, or cumulative acts of private racial fears—that accounts for the 'growing core of Negro schools,' a 'core' that has grown to include virtually the entire city. The Constitution simply does not allow federal courts to attempt to change that situation unless and until it is shown that the State, or its political subdivisions, have contributed to cause the situation to exist. No record has been made in this case showing that the racial composition of the Detroit school population or that residential patterns within Detroit and in the surrounding areas were in any significant measure caused by governmental activity, and it follows that the situation over which my dissenting Brothers express concern cannot serve as the predicate for the remedy adopted by the District Court and approved by the Court of Appeals.

^1. Mich.Const., Art. 8, §§ 2, 3.

^2. See 484 F.2d 215, 247—248; Mich.Comp.Laws §§ 340.402, 340.431, 340.447, 388.681 (1970).

^3. Mich.Comp.Laws § 388.851 (1948), as amended by Act 231, Mich.Pub.Acts of 1949, and Act 175, Mich.Pub.Acts 1962.

^4. See Mich.Comp.Laws §§ 132.1 and 132.2 (1970); 3 App. 157.

^5. See 484 F.2d at 248—249.

^6. See Detroit Free Press, Nov. 8, 1972, p. 1A, col. 3. Michigan has recently passed legislation which could eliminate some, but not all, of the inequities in school financing. See Act 101, Mich.Pub.Acts of 1973.

^7. See 484 F.2d, at 246—247; Mich.Const. Art. 8, §§ 2, 3.

^8. See n. 2, supra.

^9. A tremendous change has occurred in the distribution of this country's black population since World War I. See Hauser, Demographic Factors in the Integration of the Negro, Daedalus 847 877 (fall 1965). In 1910, 73% of all blacks lived on farms and in rural areas; by 1960, 73% lived in urban areas, mainly in the largest metropolitan areas. Moreover, due to the fact that the black population is younger than the white population, the concentration of blacks in the cities is even more pronounced for the schoolage population. The pattern of change which has existed since World War I is continuing, and hence the proportion of blacks in the urban North and West will continue to increase. Dept. of Health, Education, and Welfare, J. Coleman et al., Equality of Educational Opportunity 39—40 (1966).

^10. There are some definite and systematic directions of difference between the schools attended by minorities and those attended by the majority. It appears to be in the most academically related areas that the schools of minority pupils show the most consistent deficiencies.' Dept. of Health, Education, and Welfare, Coleman et al., supra n. 9, at 120.

^11. That some school districts are markedly poorer than others is beyond question. The California Supreme Court has noted that per-pupil expenditures in two different districts—both located in the same county—were $2,223 and $616. Serrano v. Priest, 5 Cal.3d 584, 600 n. 15 (1971). In New York the Fleischmann Commission reported that the two Long Island districts of Great Neck and Levittown spent $2,078 and $1,189 respectively per pupil. 1 New York State Commission on the Quality, Cost, and Financing of Elementary and Secondary Education, Fleischmann Report 58 (1973). 'A further glaring inequity resulting from the current systems of school finance is that variations in per pupil expenditures among school districts tend to be inversely related to educational need. City students, with greater than average education deficiencies, consistently have less money spent on their education and have higher pupil/teacher ratios than do their high-income counterparts in the favored schools of suburbia.' Glickstein & Want, Inequality in School Financing: The Role of the Law, 25 Stan.L.Rev. 335, 338 (1973).

^12. Cities face an especially difficult problem in paying the cost of education, since they have the 'municipal overburden' which results from greater costs for health, public safety, sanitation, public works, transportation, public welfare, public housing, and recreation. Because of municipal overburden, cities on the average devote only about 30% of their budgets to their schools. This compares with the over 50% which is spent on schools by the suburbs. J. Berke & J. Callahan, Inequities in School Finance (1971), reprinted in Senate Select Committee on Equal Educational Opportunity, 92d Cong., 2d Sess., Report on Issues in School Finance 129, 142 (Comm.Print 1972); see Glickstein & Want, supra, n. 11, at 387.

^13. Mr. Justice STEWART indicates that equitable factors weigh in favor of local school control and the avoidance of administrative difficulty given the lack of an 'interdistrict' violation. Ante, at 755. It would seem to me that the equities are stronger in favor of the children of Detroit who have been deprived of their constitutional right to equal treatment by the State of Michigan.

^1. The percentage of Negro pupils in the Detroit student population rose to 64.9% in 1971, to 67.3% in 1972, and to 69.8% in 1973, amid a metropolitan school population whose racial composition in 1970 was 81% white and 19% Negro. 5 App. 16; Racial-Ethnic Distribution of Students and Employees in the Detroit Public Schools, October 1972, and October 1973; 484 F.2d 215, 250.

^2. The District Court's ruling on the Detroit-only desegregation plans is set out in full by the Court of Appeals, id., at 242—245, and is not otherwise officially reported.

^3. The Court has previously disapproved the implementation of proposed desegregation plans which operate to permit resegregation. Monroe v. Board of Comm'rs, 391 U.S. 450, 459—460, 88 S.Ct. 1700, 1705, 20 L.Ed.2d 733 (1968), ('free transfer' plan).

^4. The Court of Appeals also noted several specific instances of school district mergers ordered by the State Board of Education for financial reasons. 484 F.2d, at 247. Limitations on the authority of local school districts were also outlined by the Court of Appeals:

'Local school districts, unless they have the approval of the State Board of Education or the Superintendent of Public Instruction, cannot consolidate with another school district, annex territory, divide or attach parts of other districts, borrow monies in anticipation of State aid, or construct, reconstruct or remodel school buildings or additions to them.' Id., at 249. (Footnotes and supporting statutory citations omitted.)

And the Court of Appeals properly considered the State's statutory attempt to undo the adoption of a voluntary high school desegregation plan by the Detroit Board of Education as evidencing state control over local school district affairs. Ibid. Finally, it is also relevant to note that the District Court found that the school district boundaries in that segment of the metropolitan area preliminarily designated as the desegregation area 'in general bear no relationship to other municipal, county, or special district governments, needs or services,' that some educational services are already provided to students on an interdistrict basis requiring their travel from one district to another, and that local communities in the metropolitan area share noneducational interests in common, which do not adhere to school district lines, and have applied metropolitan solutions to other governmental needs. 345 F.Supp. 914, 934—935 (E.D.Mich.1972).

^5. These included the creation and alteration of attendance zones and feeder patterns from the elementary to the secondary schools in a manner naturally and predictably perpetuating racial segregation of students, the transportation of Negro students beyond predominantly white schools with available space to predominantly Negro schools, the use of optional attendance areas in neighborhoods in which Negro families had recently begun to settle to permit white students to transfer to predominantly white schools nearer the city limits, and the construction of schools in the heart of residentially segregated areas, thereby maximizing school segregation.

^1. Contrary to the Court's characterization, the use of racial ratios in this case in no way differed from that in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). Here, as there, mathematical ratios were used simply as 'a starting point in the process of shaping a remedy, rather than an inflexible requirement.' Id., at 25, 91 S.Ct., at 1280. It may be expected that a final desegregation plan in this case would deviate from a pure mathematical approach. Indeed, the District Court's most recent order appointing a panel of experts to draft an interdistrict plan requires only that the plan be designed 'to achieve the greatest degree of actual desegregation . . . (w)ithin the limitations of reasonable travel time and distance factors.' 345 F.Supp. 914, 918 (ED Mich.1972). Cf. 402 U.S., at 23, 91 S.Ct., at 1279.

^2. It does not appear that even the majority places any real weight on this consideration since it recognizes that interdistrict relief would be proper where a constitutional violation within one district produces a significant segregative effect in another district, see ante, at 744—745, thus allowing interdistrict relief to touch districts which have not themselves violated the Constitution.

^3. See Mich.Comp.Laws § 388.851 (1970).

^4. See § 388.1179.

^5. See §§ 388.629 and 340.600.

^6. See § 388.611. The State contributed an average of 34% of the operating budgets of the 54 school districts included in the original proposed desegregation area. In 11 of these districts, state contributions exceeded 50% of the operating budgets.

^7. See, e.g., id., § 340.575. See also 1949—1950 Report of the Attorney General 104 (Roth); Vol. 1, 1955 Report of the Attorney General 561 (Kavanagh); 1961—1962 Report of the Attorney General 533 (Kelley).

^8. See Mich.Comp.Laws §§ 211.34 and 340.681.

^9. § 340.569.

^10. §§ 257.811(c), 340.361, 340.781, 340.782, 388.371.

^11. § 340.575.

^12. § 388.1171.

^13. § 340.887(1).

^14. Op.Atty.Gen. No. 4705 (July 7, 1970), 1969—1970 Report of the Attorney General 156 (Kelley).

^15. See Mich.Comp.Laws § 340.253.

^16. See generally, §§ 340.401—340.415 (consolidations), 340.431—340.449 (annexations).

^17. See 1 Michigan Senate Journal, 1968, p. 423.

^18. See generally Mich.Comp.Laws §§ 340.461—340.468.

^19. Despite Mr. Justice STEWART's claim to the contrary, ante, at 756, n. 2, of his concurring opinion, the record fully supports my statement that Negro students were intentionally confined to a core of Negro schools within the city of Detroit. See, e.g., supra, at 784—785, 790—792. Indeed, Mr. Justice STEWART acknowledges that intentional acts of segregation by the State have separated white and Negro students within the city, and that the resulting core of all-Negro schools has grown to encompass most of the city. In suggesting that my approval of an interdistrict remedy rests on a further conclusion that the State or its political subdivisions have been responsible for the increasing percentage of Negro students in Detroit, my Brother STEWART misconceives the thrust of this dissent. In light of the high concentration of Negro students in Detroit, the District Judge's finding that a Detroit-only remedy cannot effectively cure the constitutional violation within the city should be enough to support the choice of an interdistrict remedy. Whether state action is responsible for the growth of the core of all-Negro schools in Detroit is, in my view, quite irrelevant.

The difficulty with Mr. Justice STEWART's position is that he, like the Court, confuses the inquiry required to determine whether there has been a substantive constitutional violation with that necessary to formulate an appropriate remedy once a constitutional violation has been shown. While a finding of state action is of course a prerequisite to finding a violation, we have never held that after unconstitutional state action has been shown, the District Court at the remedial stage must engage in a second inquiry to determine whether additional state action exists to justify a particular remedy. Rather, once a constitutional violation has been shown, the District Court is duty-bound to formulate an effective remedy and, in so doing, the court is entitled—indeed, it is required—to consider all the factual circumstances relevant to the framing of an effective decree. Thus, in Swann v. Charlotte-Mecklenburg Board of Education we held that the District Court must take into account the existence of extensive residential segregation in determining whether a racially neutral 'neighborhood school' attendance plan was an adequate desegregation remedy, regardless of whether this residential segregation was caused by state action. So here, the District Court was required to consider the facts that the Detroit school system was already predominantly Negro and would likely become all-Negro upon issuance of a Detroit-only decree in framing an effective desegregation remedy, regardless of state responsibility for this situation.

^20. In fact, the District Court remarked 'that this court's task is to enforce constitutional rights not to act as a schoolmaster; the court's task is to protect the constitutional rights here found violated with as little intrusion into the education process as possible. The court's objective is to establish the minimum constitutional framework within which the system of public schools may operate now and hereafter in a racially unified, non-discriminatory fashion. Within that framework the body politic, educators, parents, and most particularly the children must be given the maximum opportunity to experiment and secure a high quality, and equal, educational opportunity.' Pet.App. 82a.

^21. See, e.g., Mich.Comp.Laws §§ 340.69, 340.121(d), 340.359, 340.582, 340.582a, 340.590.

^22. See id., §§ 340.330—340.330u.

          See 411 U.S. 959, 93 S.Ct. 1919.

                    Syllabus

          The financing of public elementary and secondary schools in Texas is a product of state and local participation. Almost half of the revenues are derived from a largely state-funded program designed to provide a basic minimum educational offering in every school. Each district supplements state aid through an ad valorem tax on property within its jurisdiction. Appellees brought this class action on behalf of schoolchildren said to be members of poor families who reside in school districts having a low property tax base, making the claim that the Texas system's reliance on local property taxation favors the more affluent and violates equal protection requirements because of substantial interdistrict disparities in per-pupil expenditures resulting primarily from differences in the value of assessable property among the districts. The District Court, finding that wealth is a 'suspect' classification and that education is a 'fundamental' right, concluded that the system could be upheld only upon a showing, which appellants failed to make, that there was a compelling state interest for the system. The court also concluded that appellants failed even to

Page 2

demonstrate a reasonable or rational basis for the State's system. Held:

          1. This is not a proper case in which to examine a State's laws under standards of strict judicial scrutiny, since that test is reserved for cases involving laws that operate to the disadvantage of suspect classes or interfere with the exercise of fundamental rights and liberties explicitly or implicitly protected by the Constitution. Pp. 18—44.

          (a) The Texas system does not disadvantage any suspect class. It has not been shown to discriminate against any definable class of 'poor' people or to occasion discriminations depending on the relative wealth of the families in any district. And, insofar as the financing system disadvantages those who, disregarding their individual income characteristics, reside in comparatively poor school districts, the resulting class cannot be said to be suspect. Pp. 18—28.

          (b) Nor does the Texas school-financing system impermissibly interfere with the exercise of a 'fundamental' right or liberty. Though education is one of the most important services performed by the State, it is not within the limited category of rights recognized by this Court as guaranteed by the Constitution. Even if some identifiable quantum of education is arguably entitled to constitutional protection to make meaningful the exercise of other constitutional rights, here there is no showing that the Texas system fails to provide the basic minimal skills necessary for that purpose. Pp. 29—39.

          (c) Moreover, this is an inappropriate case in which to invoke strict scrutiny since it involves the most delicate and difficult questions of local taxation, fiscal planning, educational policy, and federalism, considerations counseling a more restrained form of review. Pp. 40—44.

          2. The Texas system does not violate the Equal Protection Clause of the Fourteenth Amendment. Though concededly imperfect, the system bears a rational relationship to a legitimate state purpose. While assuring a basic education for every child in the State, it permits and encourages participation in and significant control of each district's schools at the local level. Pp. 44—53.

          D.C., 337 F.Supp. 280, reversed.

Page 3

          Charles Alan Wright, Austin, Tex., for appellants.

          Arthur Gochman, San Antonio, Tex., for appellees.

  [Amicus Curiae Information from pages 3-5 intentionally omitted]

Page 4

           Mr. Justice POWELL delivered the opinion of the Court.

          This suit attacking the Texas system of financing public education was initiated by Mexican-American parents whose children attend the elementary and sec-

Page 5

ondary schools in the Edgewood Independent School District, an urban school district in San Antonio, Texas.¹ They brought a class action on behalf of schoolchildren throughout the State who are members of minority groups or who are poor and reside in school districts having a low property tax base. Named as defendants² were the State Board of Education, the Commissioner of Education, the State Attorney General, and the Bexar County (San Antonio) Board of Trustees. The com-

Page 6

plaint was filed in the summer of 1968 and a three-judge court was impaneled in January 1969.³ In December 1971⁴ the panel rendered its judgment in a per curiam opinion holding the Texas school finance system unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.⁵ The State appealed, and we noted probable jurisdiction to consider the far-reaching constitutional questions presented. 406 U.S. 966, 92 S.Ct. 2413, 32 L.Ed.2d 665 (1972). For the reasons stated in this opinion, we reverse the decision of the District Court.

          The first Texas State Constitution, promulgated upon Texas' entry into the Union in 1845, provided for the establishment of a system of free schools. ⁶ Early in its history, Texas adopted a dual approach to the financing of its schools, relying on mutual participation by the local school districts and the State. As early as 1883, the state

Page 7

constitution was amended to provide for the creation of local school districts empowered to levy ad valorem taxes with the consent of local taxpayers for the 'erection . . . of school buildings' and for the 'further maintenance of public free schools.'⁷ Such local funds as were raised were supplemented by funds distributed to each district from the State's Permanent and Available School Funds.⁸ The Permanent School Fund, its predecessor established in 1854 with $2,000,000 realized from an annexation settlement,⁹ was thereafter endowed with millions of acres of public land set aside to assure a continued source of income for school support.¹⁰ The Available School Fund, which received income from the Permanent School Fund as well as from a state ad valorem property tax and other designated taxes,¹¹ served as the disbursing arm for most state educational funds throughout the late 1800's and first half of this century. Additionally, in 1918 an increase in state property taxes was used to finance a program providing free textbooks throughout the State.¹²

          Until recent times, Texas was a predominantly rural State and its population and property wealth were spread

Page 8

relatively evenly across the State.¹³ Sizable differences in the value of assessable property between local school districts became increasingly evident as the State became more industrialized and as rural-to-urban population shifts became more pronounced.¹⁴ The location of commercial and industrial property began to play a significant role in determining the amount of tax resources available to each school district. These growing disparities in population and taxable property between districts were responsible in part for increasingly notable differences in levels of local expenditure for education.¹⁵

          In due time it became apparent to those concerned with financing public education that contributions from the Available School Fund were not sufficient to ameliorate these disparities.¹⁶ Prior to 1939, the Available School Fund contributed money to every school district at a rate of $17.50 per school-age child.¹⁷ Although the amount was increased several times in the early 1940's,¹⁸

Page 9

the Fund was providing only $46 per student by 1945.¹⁹

          Recognizing the need for increased state funding to help offset disparities in local spending and to meet Texas' changing educational requirements, the state legislature in the late 1940's undertook a thorough evaluation of public education with an eye toward major reform. In 1947, an 18-member committee, composed of educators and legislators, was appointed to explore alternative systems in other States and to propose a funding scheme that would guarantee a minimum or basic educational offering to each child and that would help overcome interdistrict disparities in taxable resources. The Committee's efforts led to the passage of the Gilmer-Aikin bills, named for the Committee's co-chairmen, establishing the Texas Minimum Foundation School Program²⁰. Today, this Program accounts for approximately half of the total educational expenditures in Texas.²¹

          The Program calls for state and local contributions to a fund earmarked specifically for teacher salaries, operating expenses, and transportation costs. The State, supplying funds from its general revenues, finances approximately 80% of the Program, and the school districts are responsible—as a unit—for providing the remaining 20%. The districts' share, known as the Local Fund Assignment, is apportioned among the school districts

Page 10

under a formula designed to reflect each district's relative taxpaying ability. The Assignment is first divided among Texas' 254 counties pursuant to a complicated economic index that takes into account the relative value of each county's contribution to the State's total income from manufacturing, mining, and agricultural activities. It also considers each county's relative share of all payrolls paid within the State and, to a lesser extent, considers each county's share of all property in the State.²² Each county's assignment is then divided among its school districts on the basis of each district's share of assessable property within the county.²³ The district, in turn, finances its share of the Assignment out of revenues from local property taxation.

          The design of this complex system was twofold. First, it was an attempt to assure that the Foundation Program would have an equalizing influence on expenditure levels between school districts by placing the heaviest burden on the school districts most capable of paying. Second, the Program's architects sought to establish a Local Fund Assignment that would force every school district to contribute to the education of its children²⁴ but that would not by itself exhaust any district's resources.²⁵ Today every school district does impose a property tax from which it derives locally expendable

Page 11

funds in excess of the amount necessary to satisfy its Local Fund Assignment under the Foundation Program.

          In the years since this program went into operation in 1949, expenditures for education—from state as well as local sources have increased steadily. Between 1949 and 1967, expenditures increased approximately 500%.²⁶ In the last decade alone the total public school budget rose from $750 million to.$2.1 billion²⁷ and these increases have been reflected in consistently rising perpupil expenditures throughout the State.²⁸ Teacher salaries, by far the largest item in any school's budget, have increased dramatically—the state-supported minimum salary for teachers possessing college degrees has risen from $2,400 to $6,000 over the last 20 years.²⁹

          The school district in which appellees reside, the Edgewood Independent School District, has been compared throughout this litigation with the Alamo Heights Independent School District. This comparison between the least and most affluent districts in the San Antonio area serves to illustrate the manner in which the dual system of finance operates and to indicate the extent to which substantial disparities exist despite the State's impressive progress in recent years. Edgewood is one of seven public school districts in the metropolitan are enrolled in its 25 elementary

Page 12

and secondary schools. The district is are enrolled in its 25 elementary situated in the core-city sector of San Antonio in a residential neighborhood that has little commercial or industrial property. The residents are predominantly of Mexican-American descent: approximately 90% of the student population is Mexican-American and over 6% is Negro. The average assessed property value per pupil is $5,960—the lowest in the metropolitan area—and the median family income ($4,686) is also the lowest.³⁰ At an equalized tax rate of $1.05 per $100 of assessed property the highest in the metropolitan area—the district contributed $26 to the education of each child for the 1967—1968 school year above its Local Fund Assignment for the Minimum Foundation Program. The Foundation Program contributed $222 per pupil for a state-local total of $248.³¹ Federal funds added another $108 for a total of $356 per pupil.³²

          Alamo Heights is the most affluent school district in San Antonio. Its six schools, housing approximately 5,000 students, are situated in a residential community quite unlike the Edgewood District. The school population is predominantly 'Anglo,' having only 18% Mexican-Amer-

Page 13

icans and less than 1% Negroes. The assessed property value per pupil exceeds $49,000,³³ and the median family income is $8,001. In 1967—1968 the local tax rate of $.85 per $100 of valuation yielded $333 per pupil over and above its contribution to the Foundation Program. Coupled with the $225 provided from that Program, the district was able to supply $558 per student. Supplemented by a $36 per-pupil grant from federal sources, Alamo Heights spent $594 per pupil.

          Although the 1967—1968 school year figures provide the only complete statistical breakdown for each category of aid,³⁴ more recent partial statistics indicate that the previously noted trend of increasing state aid has been significant. For the 1970—1971 school year, the Foundation School Program allotment for Edgewood was $356 per pupil, a 62% increase over the 1967—68 school year. Indeed, state aid alone in 1970—1971 equaled Edgewood's entire 1967—1968 school budget from local, state, and federal sources. Alamo Heights enjoyed a similar increase under the Foundation Program, netting $491 per pupil in 1970—1971.³⁵ These recent figures

Page 14

also reveal the extent to which these two districts' allotments were funded from their own required contributions to the Local Fund Assignment. Alamo Heights, because of its relative wealth, was required to contribute out of its local property tax collections approximately $100 per pupil, or about 20% of its Foundation grant. Edgewood, on the other hand, paid only $8.46 per pupil, which is about 2.4% of its grant.³⁶ It appears then that, at least as to these two districts, the Local Fund Assignment does reflect a rough approximation of the relative taxpaying potential of each.³⁷

Page 15

                    Despite these recent increases, substantial interdistrict disparities in school expenditures found by the District Court to prevail in San Antonio and in varying degrees throughout the State³⁸ still exist. And it was

Page 16

these disparities, largely attributable to differences in the amounts of money collected through local property taxation, that led the District Court to conclude that Texas' dual system of public school financing violated the Equal Protection Clause. The District Court held that the Texas system discriminates on the basis of wealth in the manner in which education is provided for its people. 337 F.Supp., at 282. Finding that wealth is a 'suspect' classification and that education is a 'fundamental' interest, the District Court held that the Texas system could be sustained only if the State could show that it was premised upon some compelling state interest. Id., at 282—284. On this issue the court concluded that '(n)ot only are defendants unable to demonstrate compelling state interests . . . they fail even to establish a reasonable basis for these classifications.' Id., at 284.

          Texas virtually concedes that its historically rooted dual system of financing education could not withstanding the strict judicial scrutiny that this Court has found appropriate in reviewing legislative judgments that interfere with fundamental constitutional rights³⁹ or that involve suspect classifications.⁴⁰ If, as previous decisions have indicated, strict scrutiny means that the State's system is not entitled to the usual presumption of validity, that the State rather than the complainants must carry a 'heavy burden of justification,' that the State must

Page 17

demonstrate that its educational system has been structured with 'precision,' and is 'tailored' narrowly to serve legitimate objectives and that it has selected the 'less drastic means' for effectuating its objectives,⁴¹ the Texas financing system and its counterpart in virtually every other State will not pass muster. The State candidly admits that '(n)o one familiar with the Texas system would contend that it has yet achieved perfection.'⁴² Apart from its concession that educational financing in Texas has 'defects'⁴³ and 'imperfections,'⁴⁴ the State defends the system's rationality with vigor and disputes the District Court's finding that it lacks a 'reasonable basis.'

          This, then, establishes the framework for our analysis. We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. If so, the judgment of the District Court should be affirmed. If not, the Texas scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.

          The District Court's opinion does not reflect the novelty and complexity of the constitutional questions posed by appellees' challenge to Texas' system of school financing. In concluding that strict judicial scrutiny was required,

Page 18

that court relied on decisions dealing with the rights of indigents to equal treatment in the criminal trial and appellate processes,⁴⁵ and on cases disapproving wealth restrictions on the right to vote.⁴⁶ Those cases, the District Court concluded, established wealth as a suspect classification. Finding that the local property tax system discriminated on the basis of wealth, it regarded those precedents as controlling. It then reasoned, based on decisions of this Court affirming the undeniable importance of education, ⁴⁷ that there is a fundamental right to education and that, absent some compelling state justification, the Texas system could not stand.

          We are unable to agree that this case, which in significant aspects is sui generis, may be so neatly fitted into the conventional mosaic of constitutional analysis under the Equal Protection Clause. Indeed, for the several reasons that follow, we find neither the suspect-classification not the fundamental-interest analysis persuasive.

            The wealth discrimination discovered by the District Court in this case, and by several other courts that have recently struck down school-financing laws in other States,⁴⁸ is quite unlike any of the forms of wealth dis-

Page 19

crimination heretofore reviewed by this Court. Rather than focusing on the unique features of the alleged discrimination, the courts in these cases have virtually assumed their findings of a suspect classification through a simplistic process of analysis: since, under the traditional systems of financing public schools, some poorer people receive less expensive educations than other more affluent people, these systems discriminate on the basis of wealth. This approach largely ignores the hard threshold questions, including whether it makes a difference for purposes of consideration under the Constitution that the class of disadvantaged 'poor' cannot be identified or defined in customary equal protection terms, and whether the relative—rather than absolute—nature of the asserted deprivation is of significant consequence. Before a State's laws and the justifications for the classifications they create are subjected to strict judicial scrutiny, we think these threshold considerations must be analyzed more closely than they were in the court below.

          The case comes to us with no definitive description of the classifying facts or delineation of the disfavored class. Examination of the District Court's opinion and of appellees' complaint, briefs, and contentions at oral argument suggests, however, at least three ways in which the discrimination claimed here might be described. The Texas system of school financing might be regarded as discriminating (1) against 'poor' persons whose incomes fall below some identifiable level of poverty or who might be characterized as functionally 'indigent,'⁴⁹ or

Page 20

(2) against those who are relatively poorer than others, ⁵⁰ or (3) against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts.⁵¹ Our task must be to ascertain whether, in fact, the Texas system has been shown to discriminate on any of these possible bases and, if so, whether the resulting classification may be regarded as suspect.

          The precedents of this Court provide the proper starting point. The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. In Griffin v. Illinois,

Page 21

  351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and its progeny,⁵² the Court invalidated state laws that prevented an indigent criminal defendant from acquiring a transcript, or an adequate substitute for a transcript, for use at several stages of the trial and appeal process. The payment requirements in each case were found to occasion de facto discrimination against those who, because of their indigency, were totally unable to pay for transcripts. And the Court in each case emphasized that no constitutional violation would have been shown if the State had provided some 'adequate substitute' for a full stenographic transcript. Britt v. North Carolina, 404 U.S. 226, 228, 92 S.Ct. 431, 434, 30 L.Ed.2d 400 (1971); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Eskridge v. Washington State Board of Prisons, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958).

          Likewise, in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), a decision establishing an indigent defendant's right to court-appointed counsel on direct appeal, the Court dealt only with defendants who could not pay for counsel from their own resources and who had no other way of gaining representation. Douglas provides no relief for those on whom the burdens of paying for a criminal defense are relatively speaking, great but not insurmountable. Nor does it deal with relative differences in the quality of counsel acquired by the less wealthy.

          Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), struck down criminal penalties that subjected indigents to incarceration simply be-

Page 22

cause of their inability to pay a fine. Again, the disadvantaged class was composed only of persons who were totally unable to pay the demanded sum. Those cases do not touch on the question whether equal protection is denied to persons with relatively less money on whom designated fines impose heavier burdens. The Court has not held that fines must be structured to reflect each person's ability to pay in order to avoid disproportionate burdens. Sentencing judges may, and often do, consider the defendant's ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate.

          Finally, in Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), the Court invalidated the Texas filing-fee requirement for primary elections. Both of the relevant classifying facts found in the previous cases were present there. The size of the fee, often running into the thousands of dollars and, in at least one case, as high as $8,900, effectively barred all potential candidates who were unable to pay the required fee. As the system provided 'no reasonable alternative means of access to the ballot' (id., at 149, 92 S.Ct. at 859), inability to pay occasioned an absolute denial of a position on the primary ballot.

          Only appellees' first possible basis for describing the class disadvantaged by the Texas school-financing system—discrimination against a class of definably 'poor' persons—might arguably meet the criteria established in these prior cases. Even a cursory examination, however, demonstrates that neither of the two distinguishing characteristics of wealth classifications can be found here. First, in support of their charge that the system discriminates against the 'poor,' appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any

Page 23

designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts. A recent and exhaustive study of school districts in Connecticut concluded that '(i)t is clearly incorrect . . . to contend that the 'poor' live in 'poor' districts . . .. Thus, the major factual assumption of Serrano—that the educational financing system discriminates against the 'poor'—is simply false in Connecticut.'⁵³ Defining 'poor' families as those below the Bureau of the Census 'poverty level,'⁵⁴ the Connecticut study found, not surprisingly, that the poor were clustered around commercial and industrial areas—those same areas that provide the most attractive sources of property tax income for school districts.⁵⁵ Whether a similar pattern would be discovered in Texas is not known, but there is no basis on the record in this case for assuming that the poorest people—defined by reference to any level of absolute impecunity—are concentrated in the poorest districts.

          Second, neither appellees nor the District Court addressed the fact that, unlike each of the foregoing cases, lack of personal resources has not occasioned an absolute deprivation of the desired benefit. The argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer quality education than that available to children in districts having more assessable wealth. Apart from the unsettled and disputed question whether the quality of education may be determined by the amount of money

Page 24

expended for it,⁵⁶ a sufficient answer to appellees' argument is that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.⁵⁷ Nor indeed, in view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense. Texas asserts that the Minimum Foundation Program provides an 'adequate' education for all children in the State. By providing 12 years of free public-school education, and by assuring teachers, books, transportation, and operating funds, the Texas Legislature has endeavored to 'guarantee, for the welfare of the state as a whole, that all people shall have at least an adequate program of education. This is what is meant by 'A Minimum Foundation Program of Education."⁵⁸ The State repeatedly asserted in its briefs in this Court that it has fulfilled this desire and that it now assures 'every child in every school district an adequate education.'⁵⁹ No proof was offered at trial persuasively discrediting or refuting the State's assertion.

Page 25

          For these two reasons—the absence of any evidence that the financing system discriminates against any definable category of 'poor' people or that it results in the absolute deprivation of education—the disadvantaged class is not susceptible of identification in traditional terms.⁶⁰

          As suggested above, appellees and the District Court may have embraced a second or third approach, the second of which might be characterized as a theory of relative or comparative discrimination based on family income. Appellees sought to prove that a direct correlation exists between the wealth of families within each district and the expenditures therein for education. That is, along a continuum, the poorer the family the lower the dollar amount of education received by the family's children.

          The principal evidence adduced in support of this comparative-discrimination claim is an affidavit submitted by Professor Joele S. Berke of Syracuse University's Educational Finance Policy Institute. The District Court, relying in major part upon this affidavit and apparently accepting the substance of appellees' theory,

Page 26

noted, first, a positive correlation between the wealth of school districts, measured in terms of assessable property per pupil, and their levels of per-pupil expenditures. Second, the court found a similar correlation between district wealth and the personal wealth of its residents, measured in terms of median family income. 337 F.Supp., at 282 n. 3.

          If, in fact, these correlations could be sustained, then it might be argued that expenditures on education—equated by appellees to the quality of education—are dependent on personal wealth. Appellees' comparative-discrimination theory would still face serious unanswered questions, including whether a bare positive correlation or some higher degree of correlation⁶¹ is necessary to provide a basis for concluding that the financing system is designed to operate to the peculiar disadvantage of the comparatively poor, ⁶² and whether a class of this size and diversity could ever claim the special protection accorded 'suspect' classes. These questions need not be addressed in this case, however, since appellees' proof fails to support their allegations or the District Court's conclusions.

          Professor Berke's affidavit is based on a survey of approximately 10% of the school districts in Texas. His findings, previously set out in the margin, ⁶³ show only

Page 27

that the wealthiest few districts in the sample have the highest median family incomes and spend the most on education, and that the several poorest districts have the lowest family incomes and devote the least amount of money to education. For the remainder of the districts—96 districts composing almost 90% of the sample the correlation is inverted, i.e., the districts that spend next to the most money on education are populated by families having next to the lowest median family incomes while the districts spending the least have the highest median family incomes. It is evident that, even if the conceptual questions were answered favorably to appellees, no factual basis exists upon which to found a claim of comparative wealth discrimination.⁶⁴

          This brings us, then, to the third way in which the classification scheme might be defined—district wealth discrimination. Since the only correlation indicated by the evidence is between district property wealth and expenditures, it may be argued that discrimination might be found without regard to the individual income characteristics of district residents. Assuming a perfect correlation between district property wealth and expenditures from top to to bottom, the disadvantaged class might be

Page 28

viewed as encompassing every child in every district except the district that has the most assessable wealth and spends the most on education.⁶⁵ Alternatively, as suggested in Mr. Justice MARSHALL's dissenting opinion, post, at 96, the class might be defined more restrictively to include children in districts with assessable property which falls below the statewide average, or median, or below some other artificially defined level.

          However described, it is clear that appellees' suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts.⁶⁶ The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.

          We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class.

Page 29

But in recognition of the fact that this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied solely on this contention.⁶⁷ They also assert that the State's system impermissibly interferes with the exercise of a 'fundamental' right and that accordingly the prior decisions of this Court require the application of the strict standard of judicial review. Graham v. Richardson, 403 U.S. 365, 375—376, 91 S.Ct. 1848, 1853—1854, 29 L.Ed.2d 534 (1971); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). It is this question—whether education is a fundamental right, in the sense that it is among the rights and liberties protected by the Constitution—which has so consumed the attention of courts and commentators in recent years.⁶⁸

          In Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), a unanimous Court recognized that 'education is perhaps the most important function of state and local governments.' Id., at 493, 74 S.Ct., at 691. What was said there in the context of racial discrimination has lost none of its vitality with the passage of time:

          'Compulsory school attendance laws and the great expenditures for education both demonstrate our

Page 30

          recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.' Ibid.

          This theme, expressing an abiding respect for the vital role of education in a free society, may be found in numerous opinions of Justices of this Court writing both before and after Brown was decided. Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct. 1526, 1532, 32 L.Ed.2d 234 (Burger, C.J.), 237, 238—239, 92 S.Ct. 1544 1545 (White, J.), (1972); Abington School Dist. v. Schempp, 374 U.S. 203, 230, 83 S.Ct. 1560, 1575, 10 L.Ed.2d 844 (1963) (Brennan, J.); People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 212, 68 S.Ct. 461, 465, 92 L.Ed. 649 (1948) (Frankfurter, J.); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Interstate Consolidated Street R. Co. v. Massachusetts, 207 U.S. 79, 28 S.Ct. 26, 52 L.Ed. 111 (1907).

          Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that 'the grave significance of education both to the individual and to our society' cannot be doubted.⁶⁹ But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. Mr. Justice

Page 31

Harlan, dissenting from the Court's application of strict scrutiny to a law impinging upon the right of interstate travel, admonished that '(v)irtually every state statute affects important rights.' Shapiro v. Thompson, 394 U.S., at 655, 661, 89 S.Ct., at 1342, 1345. In his view, if the degree of judicial scrutiny of state legislation fluctuated, depending on a majority's view of the importance of the interest affected, we would have gone 'far toward making this Court a 'super-legislature." Ibid. We would, indeed, then be assuming a legislative role and one for which the Court lacks both authority and competence. But Mr. Justice Stewart's response in Shapiro to Mr. Justice Harlan's concern correctly articulates the limits of the fundamental-rights rationale employed in the Court's equal protection decisions:

          'The Court today does not 'pick out particular human activities, characterize them as 'fundamental,' and give them added protection . . ..' To the contrary, the Court simply recognizes, as it must, an established constitutional right, and gives to that right no less protection than the Constitution itself demands.' Id., at 642, 89 S.Ct., at 1335. (Emphasis in original.)

          Mr. Justice Stewart's statement serves to underline what the opinion of the Court in Shapiro makes clear. In subjecting to strict judicial scrutiny state welfare eligibility statutes that imposed a one-year durational residency requirement as a precondition to receiving AFDC benefits, the Court explained:

          '(I)n moving from State to State . . . appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.' Id., at 634, 89 S.Ct., at 1331. (Emphasis in original.)

Page 32

          The right to interstate travel had long been recognized as a right of constitutional significance,⁷⁰ and the Court's decision, therefore, did not require an ad hoc determination as to the social or economic importance of that right.⁷¹

          Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), decided only last Term, firmly reiterates that social importance is not the critical determinant for subjecting state legislation to strict scrutiny. The complainants in that case, involving a challenge to the procedural limitations imposed on tenants in suits brought by landlords under Oregon's Forcible Entry and Wrongful Detainer Law, urged the Court to examine the operation of the statute under 'a more stringent standard than mere rationality.' Id., at 73, 92 S.Ct., at 874. The tenants argued that the statutory limitations implicated 'fundamental interests which are particularly important to the poor,' such as the "need for decent shelter" and the "right to retain peaceful possession of one's home." Ibid. Mr. Justice White's analysis, in his opinion for the Court is instructive:

          'We do not denigrate the importance of decent, safe and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access

Page 33

          to dwellings of a particular quality or any recognition of the right of a tenant to occupy the real property of his landlord beyond the term of his lease, without the payment of rent . . .. Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative, not judicial, functions.' Id., at 74, 92 S.Ct., at 874. (Emphasis supplied.)

          Similarly, in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), the Court's explicit recognition of the fact that the 'administration of public welfare assistance . . . involves the most basic economic needs of impoverished human beings,' id., at 485, 90 S.Ct., at 1162, ⁷² provided no basis for departing from the settled mode of constitutional analysis of legislative classifications involving questions of economic and social policy. As in the case of housing, the central importance of welfare benefits to the poor was not an adequate foundation for requiring the State to justify its law by showing some compelling state interest. See also Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971).

          The lesson of these cases in addressing the question now before the Court is plain. It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is 'fundamental' is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Con-

Page 34

stitution. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972);⁷³ Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972);⁷⁴ Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972);⁷⁵ Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). ⁷⁶

Page 35

          Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State's social and economic legislation. It is appellees' contention, however, that education is distinguishable from other services and benefits provided by the State because it bears a peculiarly close relationship to other rights and liberties accorded protection under the Constitution. Specifically, they insist that education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote. In asserting a nexus between speech and education, appellees urge that the right to speak is meaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively. The 'marketplace of ideas' is an empty forum for those lacking basic communicative tools. Likewise, they argue that the corollary right to receive information⁷⁷ becomes little more than a hollow privilege when the recipient has not been taught to read, assimilate, and utilize available knowledge.

          A similar line of reasoning is pursued with respect to the right to vote. ⁷⁸ Exercise of the franchise, it is contended, cannot be divorced from the educational foun-

Page 36

dation of the voter. The electoral process, if reality is to conform to the democratic ideal, depends on an informed electorate: a voter cannot cast his ballot intelligently unless his reading skills and thought processes have been adequately developed.

          We need not dispute any of these propositions. The Court has long afforded zealous protection against unjustifiable governmental interference with the individual's rights to speak and to vote. Yet we have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice. That these may be desirable goals of a system of freedom of expression and of a representative form of government is not to be doubted.⁷⁹ These are indeed goals to be pursued by a people whose thoughts and beliefs are freed from governmental interference. But they are not values to be implemented by judicial instrusion into otherwise legitimate state activities.

          Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of

Page 37

educational expendi tures in Texas provide an education that falls short. Whatever merit appellees' argument might have if a State's financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved and where—as is true in the present case—no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.

          Furthermore, the logical limitations on appellees' nexus theory are difficult to perceive. How, for instance, is education to be distinguished from the significant personal interests in the basics of decent food and shelter? Empirical examination might well buttress an assumption that the ill-fed, ill-clothed, and ill-housed are among the most ineffective participants in the political process, and that they derive the least enjoyment from the benefits of the First Amendment.⁸⁰ If so, appellees' thesis would cast serious doubt on the authority of Dandridge v. Williams, supra and Lindsey v. Normer, supra.

          We have carefully considered each of the arguments supportive of the District Court's finding that education is a fundamental right or liberty and have found those arguments unpersuasive. In one further respect we find this a particularly inappropriate case in which to subject state action to strict judicial scrutiny. The present case, in another basic sense, is significantly different from any of the cases in which the Court has

Page 38

applied strict scrutiny to state or federal legislation touching upon constitutionally protected rights. Each of our prior cases involved legislation which 'deprived,' 'infringed,' or 'interfered' with the free exercise of some such fundamental personal right or liberty. See Skinner v. Oklahoma, ex rel. Williamson, supra, 316 U.S. at 536, 62 S.Ct. at 1111; Shapiro v. Thompson, supra, 394 U.S. at 634, 89 S.Ct. at 1331; Dunn v. Blumstein, supra, 405 U.S. at 338—343, 92 S.Ct. at 1001—1004. A critical distinction between those cases and the one now before us lies in what Texas is endeavoring to do with respect to education. Mr. Justice Brennan, writing for the Court in Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), expresses well the salient point:⁸¹

          'This is not a complaint that Congress . . . has unconstitutionally denied or diluted anyone's right to vote but rather that Congress violated the Constitution by not extending the relief effected (to others similarly situated) . . ..

          '(The federal law in question) does not restrict or deny the franchise but in effect extends the franchise to persons who otherwise would be denied it by state law. . . . We need only decide whether the challenged limitation on the relief effected . .. was permissible. In deciding that question, the principle that calls for the closest scrutiny of distinctions in laws denying fundamental rights . . . is

Page 39

          inapplicable; for the distinction challenged by appellees is presented only as a limitation on a reform measure aimed at eliminating an existing barrier to the exercise of the franchise. Rather, in deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a 'statute is not invalid under the Constitution because it might have gone farther than it did,' . . . that a legislature need not 'strike at all evils at the same time,' . . . and that 'reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind . . .." Id., at 656—657, 86 S.Ct., at 1727. (Emphasis in original.)

          The Texas system of school financing is not unlike the federal legislation involved in Katzenbach in this regard. Every step leading to the establishment of the system Texas utilizes today—including the decisions permitting localities to tax and expend locally, and creating and continuously expanding the state aid—was implemented in an effort to extend public education and to improve its quality.⁸² Of course, every reform that benefits some more than others may be criticized for what it fails to accomplish. But we think it plain that, in substance, the thrust of the Texas system is affirmative and reformatory and, therefore, should be scrutinized under judicial principles sensitive to the nature of the State's efforts and to the rights reserved to the States under the Constitution.⁸³

Page 40

          It should be clear, for the reasons stated above and in accord with the prior decisions of this Court, that this is not a case in which the challenged state action must be subjected to the searching judicial scrutiny reserved for laws that create suspect classifications or impinge upon constitutionally protected rights.

          We need not rest our decision, however, solely on the inappropriateness of the strict-scrutiny test. A century of Supreme Court adjudication under the Equal Protection Clause affirmatively supports the application of the traditional standard of review, which requires only that the State's system be shown to bear some rational relationship to legitimate state purposes. This case represents far more than a challenge to the manner in which Texas provides for the education of its children. We have here nothing lass than a direct attack on the way in which Texas has chosen to raise and disburse state and local tax revenues. We are asked to condemn the State's judgment in conferring on political subdivisions the power to tax local property to supply revenues for local interests. In so doing, appellees would have the Court intrude in an area in which it has traditionally deferred to state legislatures.⁸⁴ This Court has often admonished against such interferences with the State's fiscal policies under the Equal Protection Clause:

          'The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized. . . . (T)he passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax poli-

Page 41

          cies. . . . It has . . . been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. . . .' Madden v. Kentucky, 309 U.S. 83, 87—88, 60 S.Ct. 406, 408, 84 L.Ed. 590 (1940).

          See also Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973); Wisconsin v. J. C. Penney Co., 311 U.S. 435, 445, 61 S.Ct. 246, 250, 85 L.Ed. 267 (1940).

          Thus, we stand on familiar grounds when we continue to acknowledge that the Justices of this Court lack both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues. Yet, we are urged to direct the States either to alter drastically the present system or to throw out the property tax altogether in favor of some other form of taxation. No scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause.⁸⁵

Page 42

          In addition to matters of fiscal policy, this case also involves the most persistent and difficult questions of educational policy, another area in which this Court's lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels. Education, perhaps even more than welfare assistance, presents a myriad of 'intractable economic, social, and even philosophical problems.' Dandridge v. Williams, 397 U.S., at 487, 90 S.Ct. at 1163. The very complexity of the problems of financing and managing a statewide public school system suggests that 'there will be more than one constitutionally permissible method of solving them,' and that, within the limits of rationality, 'the legislature's efforts to tackle the problems' should be entitled to respect. Jefferson v. Hackney, 406 U.S., at 546—547, 92 S.Ct., at 1731. On even the most basic questions in this area the scholars and educational experts are divided. Indeed, one of the major

Page 43

sources of controversy concerns the extent to which there is a demonstrable correlation between educational expenditures and the quality of education⁸⁶—an assumed correlation underlying virtually every legal conclusion drawn by the District Court in this case. Related to the questioned relationship between cost and quality is the equally unsettled controversy as to the proper goals of a system of public education.⁸⁷ And the question regarding the most effective relationship between state boards of education and local school boards, in terms of their respective responsibilities and degrees of control, is now undergoing searching re-examination. The ultimate wisdom as to these and related problems of education is not likely to be divined for all time even by the scholars who now so earnestly debate the issues. In such circumstances, the judiciary is well advised to refrain from imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions.

Page 44

          It must be remembered, also, that every claim arising under the Equal Protection Clause has implications for the relationship between national and state power under our federal system. Questions of federalism are always inherent in the process of determining whether a State's laws are to be accorded the traditional presumption of constitutionality, or are to be subjected instead to rigorous judicial scrutiny. While '(t)he maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which this Court examines state action,'⁸⁸ it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State.

          The foregoing considerations buttress our conclusion that Texas' system of public school finance is an inappropriate candidate for strict judicial scrutiny. These same considerations are relevant to the determination whether that system, with its conceded imperfections, nevertheles bears some rational relationship to a legitimate state purpose. It is to this question that we next turn our attention.

          The basic contours of the Texas school finance system have been traced at the outset of this opinion. We will now describe in more detail that system and how it operates, as these facts bear directly upon the demands of the Equal Protection Clause.

          Apart from federal assistance, each Texas school receives its funds from the State and from its local school

Page 45

district. On a statewide average, a roughly comparable amount of funds is derived from each source.⁸⁹ The State's contribution, under the Minimum Foundation Program, was designed to provide an adequate minimum educational offering in every school in the State. Funds are distributed to assure that there will be one teacher—compensated at the statesupported minimum salary—for every 25 students.⁹⁰ Each school district's other supportive personnel are provided for: one principal for every 30 teachers;⁹¹ one 'special service' teacher—librarian, nurse, doctor, etc.—for every 20 teachers;⁹² superintendents, vocational instructors, counselors, and educators for exceptional children are also provided.⁹³ Additional funds are earmarked for current operating expenses, for student transportation,⁹⁴ and for free textbooks.⁹⁵

          The program is administered by the State Board of Education and by the Central Education Agency, which also have responsibility for school accreditation⁹⁶ and for monitoring the statutory teacher-qualification standards.⁹⁷ As reflected by the 62% increase in funds allotted to the Edgewood School District over the last three years,⁹⁸ the State's financial contribution to education is steadily increasing. None of Texas' school districts, how-

Page 46

ever, has been content to rely alone on funds from the Foundation Program.

          By virtue of the obligation to fulfill its Local Fund Assignment, every district must impose an ad valorem tax on property located within its borders. The Fund Assignment was designed to remain sufficiently low to assure that each district would have some ability to provide a more enriched educational program.⁹⁹ Every district supplements its Foundation grant in this manner. In some districts, the local property tax contribution is insubstantial, as in Edgewood where the supplement was only $26 per pupil in 1967. In other districts, the local share may far exceed even the total Foundation grant. In part, local differences are attributable to differences in the rates of taxation or in the degree to which the market value for any category of property varies from its assessed value.¹⁰⁰ The greatest interdistrict disparities, however, are attributable to differences in the amount of assessable property available within any district. Those districts that have more property, or more valuable property, have a greater capability for supplementing state funds. In large measure, these additional local revenues are devoted to paying higher salaries to more teachers. Therefore, the primary distinguishing attributes of schools in property-affluent districts are lower pupil-teacher ratios and higher salary schedules.¹⁰¹

Page 47

                    This, then, is the basic outline of the Texas school financing structure. Because of differences in expenditure levels occasioned by disparities in property tax income, appellees claim that children in less affluent districts have been made the subject of invidious discrimination. The District Court found that the State had failed even 'to establish a reasonable basis' for a system that results in different levels of per-pupil expenditure. 337 F.Supp., at 284. We disagree.

          In its reliance on state as well as local resources, the Texas system is comparable to the systems employed

Page 48

in virtually every other State.¹⁰² The power to tax local property for educational purposes has been recognized in Texas at least since 1883.¹⁰³ When the growth of commercial and industrial centers and accompanying shifts in population began to create disparities in local resources, Texas undertook a program calling for a considerable investment of state funds.

          The 'foundation grant' theory upon which Texas legislators and educators based the Gilmer-Aikin bills, was a product of the pioneering work of two New York educational reformers in the 1920's, George D. Strayer and Robert M. Haig. ¹⁰⁴ Their efforts were devoted to establishing a means of guaranteeing a minimum statewide educational program without sacrificing the vital element of local participation. The Strayer-Haig thesis

Page 49

represented an accommodation between these two competing forces. As articulated by Professor Coleman:

          'The history of education since the industrial revolution shows a continual struggle between two forces: the desire by members of society to have educational opportunity for all children, and the desire of each family to provide the best education it can afford for its own children.'¹⁰⁵

          The Texas system of school finance is responsive to these two forces. While assuring a basis education for every child in the State, it permits and encourages a large measure of participation in and control of each district's schools at the local level. In an era that has witnessed a consistent trend toward centralization of the functions of government, local sharing of responsibility for public education has survived. The merit of local control was recognized last Term in both the majority and dissenting opinions in Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972). Mr. Justice Stewart stated there that '(d)irect control over decisions vitally affecting the education of one's children is a need that is strongly felt in our society.' Id., at 469, 92 S.Ct., at 2206. The Chief Justice, in his dissent, agreed that '(l)ocal control is not only vital to continued public support of the schools, but it is of overriding importance from an educational standpoint as well.' Id., at 478, 92 S.Ct., at 2211.

          The persistence of attachment to government at the lowest level where education is concerned reflects the depth of commitment of its supporters. In part, local control means, as Professor Coleman suggests, the freedom to devote more money to the education of one's children. Equally important, however, is the opportunity

Page 50

it offers for participation in the decisionmaking process that determines how those local tax dollars will be spent. Each locality is free to tailor local programs to local needs. Pluralism also affords some opportunity for experimentation, innovation, and a healthy competition for educational excellence. An analogy to the Nation-State relationship in our federal system seems uniquely appropriate. Mr. Justice Brandeis identified as one of the peculiar strengths of our form of government each State's freedom to 'serve as a laboratory; and try novel social and economic experiments.'¹⁰⁶ No area of social concern stands to profit more from a multiplicity of viewpoints and from a diversity of approaches than does public education.

          Appellees do not question the propriety of Texas' dedication to local control of education. To the contrary, they attack the school-financing system precisely because, in their view, it does not provide the same level of local control and fiscal flexibility in all districts. Appellees suggest that local control could be preserved and promoted under other financing systems that resulted in more equality in education expenditures. While it is no doubt true that reliance on local property taxation for school revenues provides less freedom of choice with respect to expenditures for some districts than for others,¹⁰⁷

Page 51

the existence of 'some inequality' in the manner in which the State's rationale is achieved is not alone a sufficient basis for striking down the entire system. McGowan v. Maryland, 366 U.S. 420, 425—426, 81 S.Ct. 1101, 1104—1105, 6 L.Ed.2d 393 (1961). It may not be condemned simply because it imperfectly effectuates the State's goals. Dandridge v. Williams, 397 U.S., at 485, 90 S.Ct. at 1161. Nor must the financing system fail because, as appellees suggest, other methods of satisfying the State's interest, which occasion 'less drastic' disparities in expenditures, might be conceived. Only where state action impinges on the exercise of fundamental constitutional rights or liberties must it be found to have chosen the least restrictive alternative. Cf. Dunn v. Blumstein, 405 U.S., at 343, 92 S.Ct. at 1003; Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960). It is also well to remember that even those districts that have reduced ability to make free decisions with respect to how much they spend on education still retain under the present system a large measure of authority as to how available funds will be allocated. They further enjoy the power to make numerous other decisions with respect to the operation of the schools.¹⁰⁸ The people of Texas may be

Page 52

justified in believing that other systems of school financing, which place more of the financial responsibility in the hands of the State, will result in a comparable lessening of desired local autonomy. That is, they may believe

Page 53

that along with increased control of the purse strings at the state level will go increased control over local policies.¹⁰⁹

          Appellees further urge that the Texas system is unconstitutionally arbitrary because it allows the availability of local taxable resources to turn on 'happenstance.' They see no justification for a system that allows, as they contend, the quality of education to fluctuate on the basis of the fortuitous positioning of the boundary lines of political subdivisions and the location of valuable commercial and industrial property. But any scheme of

Page 54

local taxation—indeed the very existence of identifiable local governmental units—requires the establishment of jurisdictional boundaries that are inevitably arbitrary. It is equally inevitable that some localities are going to be blessed with more taxable assets than others.¹¹⁰ Nor is local wealth a static quantity. Changes in the level of taxable wealth within any district may result from any number of events, some of which local residents can and do influence. For instance, commercial and industrial enterprises may be encouraged to locate within a district by various actions—public and private.

          Moreover, if local taxation for local expenditures were an unconstitutional method of providing for education then it might be an equally impermissible means of providing other necessary services customarily financed largely from local property taxes, including local police and fire protection, public health and hospitals, and public utility facilities of various kinds. We perceive no justification for such a severe denigration of local property taxation and control as would follow from appellees' contentions. It has simply never been within the constitutional prerogative of this Court to nullify statewide measures for financing public services merely because the burdens or benefits thereof fall unevenly depending upon the relative wealth of the political subdivisions in which citizens live.

          In sum, to the extent that the Texas system of school financing results in unequal expenditures between chil-

Page 55

dren who happen to reside in different districts, we cannot say that such disparities are the product of a system that is so irrational as to be invidiously discriminatory. Texas has acknowledged its shortcomings and has persistently endeavored—not without some success—to ameliorate the differences in levels of expenditures without sacrificing the benefits of local participation. The Texas plan is not the result of hurried, ill-conceived legislation. It certainly is not the product of purposeful discrimination against any group or class. On the contrary, it is rooted in decades of experience in Texas and elsewhere, and in major part is the product of responsible studies by qualified people. In giving substance to the presumption of validity to which the Texas system is entitled, Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911), it is important to remember that at every stage of its development it has constituted a 'rough accommodation' of interests in an effort to arrive at practical and workable solutions. Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69—70, 33 S.Ct. 441, 443, 57 L.Ed. 730 (1913). One also must remember that the system here challenged is not peculiar to Texas or to any other State. In its essential characteristics, the Texas plan for financing public education reflects what many educators for a half century have thought was an enlightened approach to a problem for which there is no perfect solution. We are unwilling to assume for ourselves a level of wisdom superior to that of legislators, scholars, and educational authorities in 50 States, especially where the alternatives proposed are only recently conceived and nowhere yet tested. The constitutional standard under the Equal Protection Clause is whether the challenged state action rationally furthers a legitimate state purpose or interest. McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059, 35 L.Ed.2d 282 (1973). We hold that the Texas plan abundantly satisfies this standard.

Page 56

          In light of the considerable attention that has focused on the District Court opinion in this case and on its California predecessor, Serrano v. Priest, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 (1971), a cautionary postscript seems appropriate. It cannot be questioned that the constitutional judgment reached by the District Court and approved by our dissenting Brothers today would occasion in Texas and elsewhere an unprecedented upheaval in public education. Some commentators have concluded that, whatever the contours of the alternative financing programs that might be devised and approved, the result could not avoid being a beneficial one. But, just as there is nothing simple about the constitutional issues involved in these cases, there is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education. Those who have devoted the most thoughtful attention to the practical ramifications of these cases have found no clear or dependable answers and their scholarship reflects no such unqualified confidence in the desirability of completely uprooting the existing system.

          The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in over-burdened core-city school districts would be benefited by abrogation of traditional modes of financing education. Unless there is to be a substantial increase in state expenditures on education across the board—an event the likelihood of which is open to considerable question ¹¹¹—these groups stand to

Page 57

realize gains in terms of increased per-pupil expenditures only if they reside in districts that presently spend at relatively low levels, i.e., in those districts that would benefit from the redistribution of existing resources. Yet, recent studies have indicated that the poorest families are not invariably clustered in the most impecunious school districts.¹¹² Nor does it now appear that there is any more than a random chance that racial minorities are concentrated in property-poor districts.¹¹³ Additionally,

Page 58

several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers,¹¹⁴ a result that would exacerbate rather than ameliorate existing conditions in those areas.

          These practical considerations, of course, play no role in the adjudication of the constitutional issues presented here. But they serve to highlight the wisdom of the traditional limitations on this Court's function. The consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various States, and we do no violence to the values of federalism and separation of powers by staying our hand. We hardly need add that this Court's action today is not to be viewed as placing its judicial imprimatur on the status quo. The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax. And certainly innovative thinking as to public education, its methods, and its funding is necessary to assure both a higher level of quality and greater uniformity of opportunity. These matters merit the continued attention of the scholars who already

Page 59

have contributed much by their challenges. But the ultimate solutions must come from the lawmakers and from the democractic pressures of those who elect them.

          Reversed.

           Mr. Justice STEWART, concurring.

          The method of financing public schools in Texas, as in almost every other State, has resulted in a system of public education that can fairly be described as chaotic and unjust.¹ It does not follow, however, and I cannot find, that this system violates the Constitution of the United States. I join the opinion and judgment of the Court because I am convinced that any other course would mark an extraordinary departure from principled adjudication under the Equal Protection Clause of the Fourteenth Amendment. The unchartered directions of such a departure are suggested, I think, by the imaginative dissenting opinion my Brother MARSHALL has filed today.

          Unlike other provisions of the Constitution, the Equal Protection Clause confers no substantive rights and creates no substantive liberties.² The function of the Equal Protection Clause, rather, is simply to measure the validity of classifications created by state laws.

Page 60

          There is hardly a law on the books that does not affect some people differently from others. But the basic concern of the Equal Protection Clause is with state legislation whose purpose or effect is to create discrete and objectively identifiable classes.³ And with respect to such legislation, it has long been settled that the Equal Protection Clause is offended only by laws that are invidiously discriminatory—only by classifications that are wholly arbitrary or capricious. See, e.g., Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577. This settled principle of constitutional law was compendiously stated in Mr. Chief Justice Warren's opinion for the Court in McGowan v. Maryland, 366 U.S. 420, 425—426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, in the following words:

          'Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.'

          This doctrine is no more than a specific application of one of the first principles of constitutional adjudication—the basic presumption of the constitutional validity of a duly enacted state or federal law. See Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.L.Rev. 129 (1893).

Page 61

          Under the Equal Protection Clause, this presumption of constitutional validity disappears when a State has enacted legislation whose purpose or effect is to create classes based upon criteria that, in a constitutional sense, are inherently 'suspect.' Because of the historic purpose of the Fourteenth Amendment, the prime example of such a 'suspect' classification is one that is based upon race. See, e.g., Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222. But there are other classifications that, at least in some settings, are also 'suspect'—for example, those based upon national origin, ⁴ alienage,⁵ indigency,⁶ or illegitimacy.⁷

          Moreover, quite apart from the Equal Protection Clause, a state law that impinges upon a substantive right or liberty created or conferred by the Constitution is, of course, presumptively invalid, whether or not the law's purpose or effect is to create any classifications. For example, a law that provided that newspapers could be published only by people who had resided in the State for five years could be superficially viewed as invidiously discriminating against an identifiable class in violation of the Equal Protection Clause. But, more basically, scuch a law would be invalid simply because it abridged the freedom of the press. Numerous cases in this Court illustrate this principle.⁸

Page 62

          In refusing to invalidate the Texas system of financing its public schools, the Court today applies with thoughtfulness and understanding the basic principles I have so sketchily summarized. First, as the Court points out, the Texas system has hardly created the kind of objectively identifiable classes that are cognizable under the Equal Protection Clause.⁹ Second, even assuming the existence of such discernible categories, the classifications are in no sense based upon constitutionally 'suspect' criteria. Third, the Texas system does not rest 'on grounds wholly irrelevant to the achievement of the State's objective.' Finally, the Texas system impinges upon no substantive constitutional rights or liberties. It follows, therefore, under the established principle reaffirmed in Mr. Chief Justice Warren's opinion for the Court in McGowan v. Maryland, supra, that the judgment of the District Court must be reversed.

           Mr. Justice BRENNAN, dissenting.

          Although I agree with my Brother WHITE that the Texas statutory scheme is devoid of any rational basis, and for that reason is violative of the Equal Protection Clause, I also record my disagreement with the Court's rather distressing assertion that a right may be deemed 'fundamental' for the purposes of equal protection analysis only if it is 'explicitly or implicitly guaranteed by the Constitution.' Ante, at 33—34. As my Brother MARSHALL convincingly demonstrates, our prior cases stand for the proposition that 'fundamentality' is, in large measure, a function of the right's importance in terms of the effectuation of those rights which are in fact constitutionally guaranteed. Thus, '(a)s the nexus between the specific constitutional guarantee and the nonconstitutional interest draws closer, the non-

Page 63

constitutional interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly.' Post, at 102 103.

          Here, there can be no doubt that education is inextricably linked to the right to participate in the electoral process and to the rights of free speech and association guaranteed by the First Amendment. See post, at 111—115. This being so, any classification affecting education must be subjected to strict judicial scrutiny, and since even the State concedes that the statutory scheme now before us cannot pass constitutional muster under this stricter standard of review, I can only conclude that the Texas school-financing scheme is constitutionally invalid.

           Mr. Justice WHITE, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.

          The Texas public schools are financed through a combination of state funding, local property tax revenue, and some federal funds.¹ Concededly, the system yields wide disparity in per-pupil revenue among the various districts. In a typical year, for example, the Alamo Heights district had total revenues of $594 per pupil, while the Edgewood district had only $356 per pupil.² The majority and the State concede, as they must, the existence

Page 64

of major disparities in spendable funds. But the State contends that the disparities do not invidiously discriminate against children and families in districts such as Edgewood, because the Texas scheme is designed 'to provide an adequate education for all, with local autonomy to go beyond that as individual school districts desire and are able . . .. It leaves to the people of each district the choice whether to go beyond the minimum and, if so, by how much.'³ The majority advances this rationalization: 'While assuring a basic education for every child in the State, it permits and encourages a large measure of participation in and control of each district's schools at the local level.'

          I cannot disagree with the proposition that local control and local decisionmaking play an important part in our democratic system of government. Cf. James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971). Much may be left to local option, and this case would be quite different if it were true that the Texas system, while insuring minimum educational expenditures in every district through state funding, extended a meaningful option to all local districts to increase their per-pupil expenditures and so to improve their children's education to the extent that increased funding would achieve that goal. The system would then arguably provide a rational and sensible method of achieving the stated aim of preserving an area for local initiative and decision.

          The difficulty with the Texas system, however, is that it provides a meaningful option to Alamo Heights and like school districts but almost none to Edgewood and those other districts with a low per-pupil real estate tax base. In these latter districts, no matter how desirous parents are of supporting their schools with greater revenues, it is impossible to do so through the use of the

Page 65

real estate property tax. In these districts, the Texas system utterly fails to extend a realistic choice to parents because the property tax, which is the only revenue-raising mechanism extended to school districts, is practically and legally unavailable. That this is the situation may be readily demonstrated.

          Local school districts in Texas raise their portion of the Foundation School Program—the Local Fund Assignment—by levying ad valorem taxes on the property located within their boundaries. In addition, the districts are authorized, by the state constitution and by statute, to levy ad valorem property taxes in order to raise revenues to support educational spending over and above the expenditure of Foundation School Program funds.

          Both the Edgewood and Alamo Heights districts are located in Bexar County, Texas. Student enrollment in Alamo Heights is 5,432, in Edgewood 22,862. The per-pupil market value of the taxable property in Alamo Heights is $49,078, in Edgewood $5,960. In a typical relevant year, Alamo Heights had a maintenance tax rate of $1.20 and a debt service (bond) tax rate of 20¢ per $100 assessed evaluation, while Edgewood had a maintenance rate of 52¢ and a bond rate of 67¢. These rates, when applied to the respective tax bases, yielded Alamo Heights $1,433,473 in maintenance dollars and $236,074 in bond dollars, and Edgewood $223,034 in maintenance dollars and $279,023 in bond dollars. As is readily apparent, because of the variance in tax bases between the districts, results, in terms of revenues, do not correlate with effort, in terms of tax rate. Thus, Alamo Heights, with a tax base approximately twice the size of Edgewood's base, realized approximately six times as many maintenance dollars as Edgewood by using a tax rate only approximately two and one-half times larger. Similarly, Alamo Heights realized slightly fewer bond

Page 66

dollars by using a bond tax rate less than one-third of that used by Edgewood.

          Nor is Edgewood's revenue-raising potential only deficient when compared with Alamo Heights. North East District has taxable property with a per-pupil market value of approximately $31,000, but total taxable property approximately four and one-half times that of Edgewood. Applying a maintenance rate of $1, North East yielded $2,818,148. Thus, because of its superior tax base, North East was able to apply a tax rate slightly less than twice that applied by Edgewood and yield more than 10 times the maintenance dollars. Similarly, North East, with a bond rate of 45¢, yielded $1,249,159—more than four times Edgewood's yield with two-thirds the rate.

          Plainly, were Alamo Heights or North East to apply the Edgewood tax rate to its tax base, it would yield far greater revenues than Edgewood is able to yield applying those same rates to its base. Conversely, were Edgewood to apply the Alamo Heights or North East rates to its base, the yield would be far smaller than the Alamo Heights or North East yields. The disparity is, therefore, currently operative and its impact on Edgewood is undeniably serious. It is evident from statistics in the record that show that, applying an equalized tax rate of 85¢ per $100 assessed valuation, Alamo Heights was able to provide approximately $330 per pupil in local revenues over and above the Local Fund Assignment. In Edgewood, on the other hand, with an equalized tax rate of $1.05 per $100 of assessed valuation, $26 per pupil was raised beyond the Local Fund Assignment.⁴ As previously noted in Alamo Heights,

Page 67

total per-pupil revenues from local, state, and federal funds was $594 per pupil, in Edgewood $356.⁵

          In order to equal the highest yield in any other Bexar County district, Alamo Heights would be required to tax at the rate of 68 per $100 of assessed valuation. Edgewood would be required to tax at the prohibitive rate of $5.76 per $100. But state law places a $1.50 per $100 ceiling on the maintenance tax rate, a limit that would surely be reached long before Edgewood attained an equal yield. Edgewood is thus precluded in law, as well as in fact, from achieving a yield even close to that of some other districts.

          The Equal Protection Clause permits discriminations between classes but requires that the classification bear some rational relationship to a permissible object sought to be attained by the statute. It is not enough that the Taxas system before us seeks to achieve the valid, rational purpose of maximizing local initiative; the means chosen by the State must also be rationally ralated to the end sought to be achieved. As the Court stated just lat Term in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768 (1972):

          'The tests to determine the validity of state statutes under the Equal Protection Clause have been variously expressed, but this Court requires, at a minimum, that a statutory classification bear some rational relationship to a legitimate state purpose. Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Gulf Colorado & Santa Fe Ry. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666 (1897); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).'

Page 68

          Neither Taxas nor the majority heeds this rule. If the State aims at maximizing local initiative and local choice, by permitting school districts to resort to the real property tax if they choose to do so, it utterly fails in achieving its purpose in districts with property tax bases so low that there is little if any opportunity for interested parents, rich or poor, to augment school district revenues. Requiring the State to establish only that unequal treatment is in furtherance of a permissible goal, without also requiring the State to show that the means chosen to effectuate that goal are rationally related to its achievement, makes equal protection analysis no more than an empty gesture.⁶ In my view, the parents and children in Edgewood, and in like districts, suffer from an invidious discrimination violative of the Equal Protection Clause.

          This does not, of course, mean that local control may not be a legitimate goal of a school-financing system. Nor does it mean that the State must guarantee each district an equal per-pupil revenue from the state school-financing system. Nor does it mean, as the majority appears to believe, that, by affirming the decision below,

Page 69

this Court would be 'imposing on the States inflexible constitutionl restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions.' On the contrary, it would merely mean that the State must fashion a financing scheme which provides a rational basis for the maximization of local control, if local control is to remain a goal of the system, and not a scheme with 'different treatment be(ing) accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute.' Reed v. Reed, 404 U.S. 71, 75—76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971).

          Perhaps the majority believes that the major disparity in revenues provided and permitted by the Texas system is inconsequential. I cannot agree, however, that the difference of the magnitude appearing in this case can sensibly be ignored, particularly since the State itself considers it so important to provide opportunities to exceed the minimum state educational expenditures.

          There is no difficulty in identifying the class that is subject to the alleged discrimination and that is entitled to the benefits of the Equal Protection Clause. I need go no further than the parents and children in the Edgewood district, who are plaintiffs here and who assert that they are entitled to the same choice as Alamo Heights to augment local expenditures for schools but are denied that choice by state law. This group constitutes a class sufficiently definite to invoke the protection of the Constitution. They are as entitled to the protection of the Equal Protection Clause as were the voters in allegedly underrepresented counties in the reapportionment cases. See, e.g., Baker v. Carr, 369 U.S. 186, 204—208, 82 S.Ct. 691, 703—705, 7 L.Ed.2d 663 (1962); Gray v. Sanders, 372 U.S. 368, 375, 83 S.Ct. 801, 805, 9 L.Ed.2d 821 (1963); Reynolds v. Sims, 377 U.S. 533, 554—556, 84 S.Ct. 1362, 1377—1379, 12 L.Ed. 506 (1964). And in Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), where a challenge to the

Page 70

Texas candidate filing fee on equal protection grounds was upheld, we noted that the victims of alleged discrimination wrought by the filing fee 'cannot be described by reference to discrete and precisely defined segments of the community as is typical of inequities challenged under the Equal Protection Clause,' but concluded that 'we would ignore reality were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status.' Id., at 144, 92 S.Ct., at 856. Similarly, in the present case we would blink reality to ignore the fact that school districts, and students in the end, are differentially affected by the Texas school-financing scheme with respect to their capability to supplement the Minimum Foundation School Program. At the very least, the law discriminates against those children and their parents who live in districts where the per-pupil tax base is sufficiently low to make impossible the provision of comparable school revenues by resort to the real property tax which is the only device the State extends for this purpose.

           Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS concurs, dissenting.

          The Court today decides, in effect, that a State may constitutionally vary the quality of education which it offers its children in accordance with the amount of taxable wealth located in the school districts within which they reside. The majority's decision represents an abrupt departure from the mainstream of recent state and federal court decisions concerning the unconstitutionality of state educational financing schemes dependent upon taxable local wealth.¹ More unfortunately, though, the

Page 71

majority's holding can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens. The Court does this despite the absence of any substantial justification for a scheme which arbitrarily channels educational resources in accordance with the fortuity of the amount of taxable wealth within each district.

          In my judgment, the right of every American to an equal start in life, so far as the provision of a state service as important as education is concerned, is far too vital to permit state discrimination on grounds as tenuous as those presented by this record. Nor can I accept the notion that it is sufficient to remit these appellees to the vagaries of the political process which, contrary to the majority's suggestion, has proved singularly unsuited to the task of providing a remedy for this discrimination.² I, for one, am unsatisfied with the hope of an ultimate 'political' solution sometime in the indefinite future while, in the meantime, countless children unjustifiably receive inferior educations that may affect their hearts

Page 72

and minds in a way unlikely ever to be undone.' Brown v. Board of Education, 347 U.S. 483, 494, 74 S.Ct. 686, 691, 98 l.Ed. 873 (1954). I must therefore respectfully dissent.

          The Court acknowledges that 'substantial interdistrict disparities in school expenditures' exist in Texas, ante, at 15, and that these disparities are 'largely attributable to differences in the amounts of money collected through local property taxation,' ante, at 16. But instead of closely examining the seriousness of these disparities and the invidiousness of the Texas financing scheme, the Court undertakes an elaborate exploration of the efforts Texas has purportedly made to close the gaps between its districts in terms of levels of district wealth and resulting educational funding. Yet, however praiseworthy Texas' equalizing efforts, the issue in this case is not whether Texas is doing its best to ameliorate the worst features of a discriminatory scheme but, rather, whether the scheme itself is in fact unconstitutionally discriminatory in the face of the Fourteenth Amendment's guarantee of equal protection of the laws. When the Texas financing scheme is taken as a whole, I do not think it can be doubted that it produces a discriminatory impact on substantial numbers of the schoolage children of the State of Texas.

          Funds to support public education in Texas are derived from three sources: local ad valorem property taxes; the Federal Government; and the state government.³ It is enlightening to consider these in order.

Page 73

          Under Texas law, the only mechanism provided the local school district for raising new, unencumbered revenues is the power to tax property located within its boundaries.⁴ At the same time, the Texas financing scheme effectively restricts the use of monies raised by local property taxation to the support of public education within the boundaries of the district in which they are raised, since any such taxes must be approved by a majority of the property-taxpaying voters of the district.⁵

          The significance of the local property tax element of the Texas financing scheme is apparent from the fact that it provides the funds to meet some 40% of the cost of public education for Texas as a whole.⁶ Yet the amount of revenue that any particular Texas district can raise is dependent on two factors—its tax rate and its amount of taxable property. The first factor is determined by the property-taxpaying voters of the district.⁷ But, regardless of the enthusiasm of the local voters for public

Page 74

education, the second factor—the taxable property wealth of the district—necessarily restricts the district's ability to raise funds to support public education. ⁸ Thus, even though the voters of two Texas districts may be willing to make the same tax effort, the results for the districts will be substantially different if one is property rich while the other is property poor. The necessary effect of the Texas local property tax is, in short, to favor property-rich districts and to disfavor property-poor ones.

          The seriously disparate consequences of the Texas local property tax, when that tax is considered alone, are amply illustrated by data presented to the District Court by appellees. These data included a detailed study of a sample of 110 Texas school districts⁹ for the 1967—1968 school year conducted by Professor Joel S. Berke of Syracuse University's Educational Finance Policy Institute. Among other things, this study revealed that the 10 richest districts examined, each of which had more than $100,000 in taxable property per pupil, raised through local effort an average of $610 per pupil, whereas the four poorest districts studied, each of which had less than $10,000 in taxable property per pupil, were able

Page 75

to raise only an average of $63 per pupil.¹⁰ And, as the Court effectively recognizes, ante, at 27, this correlation between the amount of taxable property per pupil and the amount of local revenues per pupil holds true for the 96 districts in between the richest and poorest districts.¹¹

          It is clear, moreover, that the disparity of per-pupil revenues cannot be dismissed as the result of lack of local effort that is, lower tax rates—by property-poor districts. To the contrary, the data presented below indicate that the poorest districts tend to have the highest tax rates and the richest districts tend to have the lowest tax rates.¹² Yet, despite the apparent extra effort being made by the poorest districts, they are unable even to begin to match the richest districts in terms of the production of local revenues. For example, the 10 richest districts studied by Professor Berke were able to produce $585 per pupil with an equalized tax rate of 31¢

Page 76

on $100 of equalized valuation, but the four poorest districts studied, with an equalized rate of 70¢ on $100 of equalized valuation, were able to produce only $60 per pupil. ¹³ Without more, this stateimposed system of educational funding presents a serious picture of widely varying treatment of Texas school districts, and thereby of Texas schoolchildren, in terms of the amount of funds available for public education.

          Nor are these funding variations corrected by the other aspects of the Texas financing scheme. The Federal Government provides funds sufficient to cover only some 10% of the total cost of public education in Texas.¹⁴ Furthermore, while these federal funds are not distributed in Texas solely on a per-pupil basis, appellants do not here contend that they are used in such a way as to ameliorate signiticantly the widely varying consequences for Texas school districts and schoolchildren of the local property tax element of the state financing scheme.¹⁵

          State funds provide the remaining some 50% of the monies spent on public education in Texas.¹⁶ Technically, they are distributed under two programs. The first is the Available School Fund, for which provision is made in the Texas Constitution.¹⁷ The Available

Page 77

School Fund is composed of revenues obtained from a number of sources, including receipts from the state ad valorem property tax, one-fourth of all monies collected by the occupation tax, annual contributions by the legislature from general revenues, and the revenues derived from the Permanent School Fund.¹⁸ For the 1970—1971 school year the Available School Fund contained $296,000,000. The Texas Constitution requires that this money be distributed annually on a per capita basis¹⁹ to the local school districts. Obviously, such a flat grant could not alone eradicate the funding differentials atrributable to the local property tax. Moreover, today the Available School Fund is in reality simply one facet of the second state financing program, the Minimum Foundation School Program,²⁰ since each district's annual share of the Fund is deducted from the sum to which the district is entitled under the Foundation Program.²¹

          The Minimum Foundation School Program provides funds for three specific purposes: professional salaries, current operating expenses, and transportation expenses.²² The State pays, on an overall basis, for approximately 80% of the cost of the Program; the remaining 20% is distributed among the local school districts under the

Page 78

Local Fund Assignment.²³ Each district's share of the Local Fund Assignment is determined by a complex 'economic index' which is designed to allocate a larger share of the costs to property-rich districts than to property-poor districts.²⁴ Each district pays its share with revenues derived from local property taxation.

          The stated purpose of the Minimum Foundation School Program is to provide certain basic funding for each local Texas school district.²⁵ At the same time, the Program was apparently intended to improve, to some degree, the financial position of property-poor districts relative to property-rich districts, since through the use of the economic index—an effort is made to charge a disproportionate share of the costs of the Program to rich districts. ²⁶ It bears noting, however, that substantial criticism has been leveled at the practical effectiveness of the economic index system of local cost allocation.²⁷ In theory, the index is designed to ascertain the relative ability of each district to contribute to the Local Fund Assignment from local property taxes. Yet the index is not developed simply on the basis of each district's taxable wealth. It also takes into account the district's relative income from manufacturing, mining, and agriculture, its payrolls, and its scholastic population.²⁸

Page 79

It is difficult to discern precisely how these latter factors are predictive of a district's relative ability to raise revenues through local property taxes. Thus, in 1966, one of the consultants who originally participated in the development of the Texas economic index adopted in 1949 told the Governor's Committee on Public School Education: 'The Economic Index approach to evaluating local ability offers a little better measure than sheer chance, but not much.'²⁹

          Moreover, even putting aside these criticisms of the economic index as a device for achieving meaningful district wealth equalization through cost allocation, poor districts still do not necessarily receive more state aid than property-rich districts. For the standards which currently determine the amount received from the Foundation School Program by any particular district ³⁰ favor property-rich districts.³¹ Thus, focusing on the same

Page 80

Edgewood Independent and Alamo Heights School Districts which the majority uses for purposes of illustration, we find that in 1967 1968 property-rich Alamo Heights,³² which raised $333 per pupil on an equalized tax rate of 85¢ per $100 valuation, received $225 per pupil from the Foundation School Program, while property-poor Edgewood,³³ which raised only $26 per pupil with an equalized tax rate of $1.05 per $100 valuation, received only $222 per pupil from the Foundation School Program.³⁴ And, more recent data, which indicate that for the 1970—1971 school year Alamo Heights received $491 per pupil from

Page 81

the Program while Edgewood received only $356 per pupil, hardly suggest that the wealth gap between the districts is being narrowed by the State Program. To the contrary, whereas in 1967 1968 Alamo Heights received only $3 per pupil, or about 1%, more than Edgewood in state aid, by 1970—1971 the gap had widened to a difference of $135 per pupil, or about 38%.³⁵ It was data of this character that prompted the District Court to observe that 'the current (state aid) system tends to subsidize the rich at the expense of the poor, rather than the other way around.'³⁶ 337 F.Supp. 280, 282. And even the appellants go no further here than to venture that the Minimum Foundation School Program has 'a mildly equalizing effect.'³⁷

          Despite these facts, the majority continually emphasized how much state aid has, in recent years, been given

Page 82

to property-poor Texas school districts. What the Court fails to emphasize is the cruel irony of how much more state aid is being given to property-rich Texas school districts on top of their already substantial local property tax revenues.³⁸ Under any view, then, it is apparent that the state aid provided by the Foundation School Program fails to compensate for the large funding variations attributable to the local property tax element of the Texas financing scheme. And it is these stark differences in the treatment of Texas school districts and school children inherent in the Texas financing schement, not the absolute amount of state aid provided to any particular school district, that are the crux of this case. There can, moreover, be no escaping the conclusion that the local property tax which is dependent upon taxable district property wealth is an essential feature of the Texas scheme for financing public education.³⁹

          The appellants do not deny the disparities in educational funding caused by variations in taxable district property wealth. They do contend, however, that whatever the differences in per-pupil spending among Texas districts, there are no discriminatory consequences for the children of the disadvantaged districts. They recognize that what is at stake in this case is the quality of the

Page 83

public education provided Texas children in the districts in which they live. But appellants reject the suggestion that the quality of education in any particular district is determined by money beyond some minimal level of funding which they believe to be assured every Texas district by the Minimum Foundation School Program. In their view, there is simply no denial of equal educational opportunity to any Texas school children as a result of the widely varying per-pupil spending power provided districts under the current financing scheme.

          In my view, though, even an unadorned restatement of this contention is sufficient to reveal its absurdity. Authorities concerned with educational quality no doubt disagree as to the significance of variations in per-pupil spending.⁴⁰ Indeed, conflicting expert testimony was presented to the District Court in this case concerning the effect of spending variations on educational achievement.⁴¹ We sit, however, not to resolve disputes over educational theory but to enforce our Constitution. It is an inescapable fact that if one district has more funds available per pupil than another district, the

Page 84

former will have greater choice in educational planning than will the latter. In this regard, I believe the question of discrimination in educational quality must be deemed to be an objective one that looks to what the State provides its children, not to what the children are able to do with what they receive. That a child forced to attend an underfunded school with poorer physical facilities, less experienced teachers, larger classes, and a narrower range of courses than a school with substantially more funds—and thus with greater choice in educational planning may nevertheless excel is to the credit of the child, not the State, cf. Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 349, 59 S.Ct. 232, 236, 86 L.Ed. 208 (1938). Indeed, who can ever measure for such a child the opportuntiies lost and the talents wasted for want of a broader, more enriched education? Discrimination in the opportunity to learn that is afforded a child must be our standard.

          Hence, even before this Court recognized its duty to tear down the barriers of state-enforced racial segregation in public education, it acknowledged that inequality in the educational facilities provided to students may be discriminatory state action as contemplated by the Equal Protection Clause. As a basis for striking down state-enforced segregation of a law school, the Court in Sweatt v. Painter, 339 U.S. 629, 633—634, 70 S.Ct. 848, 850, 94 L.Ed. 1114 (1950), stated:

          '(W)e cannot find substantial equality in the educational opportunities offered white and Negro law students by the State. In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law review and similar activities, the (whites only) Law School is superior. . . . It is difficult to believe that one who had a free choice between these law schools would consider the question close.'

Page 85

          See also McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950). Likewise, it is difficult to believe that if the children of Texas had a free choice, they would choose to be educated in districts with fewer resources, and hence with more antiquated plants, less experienced teachers, and a less diversified curriculum. In fact, if financing variations are so insignificant to educational quality, it is difficult to understand why a number of our country's wealthiest school districts, which have no legal obligation to argue in support of the constitutionality of the Texas legislation, have nevertheless zealously pursued its cause before this Court.⁴²

          The consequences, in terms of objective educational input, of the variations in district funding caused by the Texas financing scheme are apparent from the data introduced before the District Court. For example, in 1968—1969, 100% of the teachers in the property-rich Alamo Heights School District had college degrees.⁴³ By contrast, during the same school year only 80.02% of the teachers had college degrees in the property poor Edgewood Independent School District.⁴⁴ Also, in 1968—1969, approximately 47% of the teachers in the Edgewood District were on emergency teaching permits, whereas only 11% of the teachers in Alamo Heights were on such permits.⁴⁵ This is undoubtedly a reflection of the fact that the top of Edgewood's teacher salary scale was

Page 86

approximately 80% of Alamo Heights.⁴⁶ And, not surprisingly, the teacher-student ratio varies significantly between the two districts.⁴⁷ In other words, as might be expected, a difference in the funds available to districts results in a difference in educational inputs available for a child's public education in Texas. For constitutional purposes, I believe this situation, which is directly attributable to the Texas financing scheme, raises a grave question of state-created discrimination in the provision of public education. Cf. Gaston County v. United States, 395 U.S. 285, 293—294, 89 S.Ct. 1720, 1724—1725, 23 L.Ed.2d 309 (1969).

          At the very least, in view of the substantial interdistrict disparities in funding and in resulting educational inputs shown by appellees to exist under the Texas financing scheme, the burden of proving that these disparities do not in fact affect the quality of children's education must fall upon the appellants. Cf. Hobson v. Hansen, 327 F.Supp. 844, 860—861 (D.C.D.C.1971). Yet appellants made no effort in the District Court to demonstrate that educational quality is not affected by variations in funding and in resulting inputs. And, in this Court, they have argued no more than that the relationship is ambiguous. This is hardly sufficient to overcome appellees' prima facie showing of state-created discrimination between the schoolchildren of Texas with respect to objective educational opportunity.

          Nor can I accept the appellants' apparent suggestion that the Texas Minimum Foundation School Program effectively eradicates any discriminatory effects otherwise resulting from the local property tax element of the

Page 87

Texas financing scheme. Appellants assert that, despite its imperfections, the Program 'does guarantee an adequate education to every child.'⁴⁸ The majority, in considering the constitutionality of the Texas financing scheme, seems to find substantial merit in this contention, for it tells us that the Foundation Program 'was designed to provide an adequate minimum educational offering in every school in the State,' ante, at 45, and that the Program 'assur(es) a basic education for every child,' ante, at 49. But I fail to understand how the constitutional problems inherent in the financing scheme are eased by the Foundation Program. Indeed, the precise thrust of the appellants' and the Court's remarks are not altogether clear to me.

          The suggestion may be that the state aid received via the Foundation Program sufficiently improves the position of property-poor districts vis-a-vis property-rich districts—in terms of educational funds—to eliminate any claim of interdistrict discrimination in available educational resources which might otherwise exist if educational funding were dependent solely upon local property taxation. Certainly the Court has recognized that to demand precise equality of treatment is normally unrealistic, and thus minor differences inherent in any practical context usually will not make out a substantial equal protection claim. See, e.g., Mayer v. City of Chicago, 404 U.S. 189, 194—195, 92 S.Ct. 410, 414—415, 30 L.Ed.2d 372 (1971); Draper v. Washington, 372 U.S. 487, 495—496, 83 S.Ct. 774, 778—779, 9 L.Ed.2d 899 (1963); Bain Peanut Co. v. Pinson, 282 U.S. 499, 501, 51 S.Ct. 228, 229, 75 L.Ed. 482 (1931). But, as has already been seen, we are hardly presented here with some de minimis claim of discrimination resulting from the play necessary in any functioning system; to the contrary, it is clear that the Foundation Program utterly fails to

Page 88

ameliorate the seriously discriminatory effects of the local property tax. ⁴⁹

          Alternatively, the appellants and the majority may believe that the Equal Protection Clause cannot be offended by substantially unequal state treatment of persons who are similarly situated so long as the State provides everyone with some unspecified amount of education which evidently is 'enough.'⁵⁰ The basis for such a novel view is far from clear. It is, of course, true that the Constitution does not require precise equality in the treatment of all persons. As Mr. Justice Frankfurter explained:

          'The equality at which the 'equal protection' clause aims is not a disembodied equality. The Fourteenth Amendment enjoins 'the equal protection of the laws', and laws are not abstract propositions. . . . The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.' Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124 (1940).

          See also Douglas v. California, 372 U.S. 353, 357, 83 S.Ct. 814, 816, 9 L.Ed.2d 811 (1963); Goesaert v. Cleary, 335 U.S. 464, 466, 69 S.Ct. 198, 199, 93 L.Ed. 163 (1948).

Page 89

But this Court has never suggested that because some 'adequate' level of benefits is provided to all, discrimination in the provision of services is therefore constitutionally excusable. The Equal Protection Clause is not addressed to the minimal sufficiency but rather to the unjustifiable inequalities of state action. It mandates nothing less than that 'all persons similarly circumstanced shall be treated alike.' F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 562, 64 L.Ed. 989 (1920).

          Even if the Equal Protection Clause encompassed some theory of constitutional adequacy, discrimination in the provision of educational opportunity would certainly seem to be a poor candidate for its application. Neither the majority nor appellants inform us how judicially manageable standards are to be derived for determining how much education is 'enough' to excuse constitutional discrimination. One would think that the majority would heed its own fervent affirmation of judicial self-restraint before undertaking the complex task of determining at large what level of education is constitutionally sufficient. Indeed, the majority's apparent reliance upon the adequacy of the educational opportunity assured by the Texas Minimum Foundation School Program seems fundamentally inconsistent with its own recognition that educational authorities are unable to agree upon what makes for educational quality, see ante, at 42—43, and n. 86 and at 47 n. 101. If, as the majority stresses, such authorities are uncertain as to the impact of various levels of funding on educational quality, I fail to see where it finds the expertise to divine that the particular levels of funding provided by the Program assure an adequate educational opportunity—much less an education substantially equivalent in quality to that which a higher level of funding might provide. Certainly appellants' mere assertion before this Court of the adequacy of the education guaranteed by the Minimum

Page 90

Foundation School Program cannot obscure the constitutional implications of the discrimination in educational funding and objective educational inputs resulting from the local property tax particularly since the appellees offered substantial uncontroverted evidence before the District Court impugning the now muchtouted 'adequacy' of the education guaranteed by the Foundation Program.⁵¹

          In my view, then, it is inequality—not some notion of gross inadequacy—of educational opportunity that raises a question of denial of equal protection of the laws. I find any other approach to the issue unintelligible and without directing principle. Here, appellees have made a substantial showing of wide variations in educational funding and the resulting educational opportunity afforded to the schoolchildren of Texas. This discrimination is, in large measure, attributable to significant disparities in the taxable wealth of local Texas school districts. This is a sufficient showing to raise a substantial question of discriminatory state action in violation of the Equal Protection Clause.⁵²

Page 91

          Despite the evident discriminatory effect of the Texas financing scheme, both the appellants and the majority raise substantial questions concerning the precise character of the disadvantaged class in this case. The District Court concluded that the Texas financing scheme draws 'distinction betwen groups of citizens depending upon the wealth of the district in which they live' and thus creates a disadvantaged class composed of persons living in property-poor districts. See 337 F.Supp., at 282. See also id., at 281. In light of the data introduced before the District Court, the conclusion that the schoolchildren of property-poor districts constitute a sufficient class for our purposes seems indisputablet to me.

          Appellants contend, however, that in constitutional terms this case involves nothing more than discrimination against local school districts, not against individuals, since on its face the state scheme is concerned only with the provision of funds to local districts. The result of the Texas financing scheme, appellants suggest, is merely that some local districts have more available revenues for education; others have less. In that respect,

Page 92

they point out, the States have broad discretion in drawing reasonable distinctions between their political subdivisions. See Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 231, 84 S.Ct. 1226, 1233, 12 L.Ed.2d 256 (1964); McGowan v. Maryland, 366 U.S. 420, 427, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961); Salsburg v. Maryland, 346 U.S. 545, 550—554, 74 S.Ct. 280, 282—285, 98 L.Ed. 281 (1954).

          But this Court has consistently recognized that where there is in fact discrimination against individual interests, the constitutional guarantee of equal protection of the laws is not inapplicable simply because the discrimination is based upon some group characteristic such as geographic location. See Gordon v. Lance, 403 U.S. 1, 4, 91 S.Ct. 1889, 1891, 29 L.Ed.2d 273 (1971); Reynolds v. Sims, 377 U.S. 533, 565—566, 84 S.Ct. 1362, 1383—1384, 12 L.Ed.2d 506 (1964); Gray v. Sanders, 372 U.S. 368, 379, 83 S.Ct. 801, 807, 9 L.Ed.2d 821 (1963). Texas has chosen to provide free public education for all its citizens, and it has embodied that decision in its constitution. ⁵³ Yet, having established public education for its citizens, the State, as a direct consequence of the variations in local property wealth endemic to Texas' financing scheme, has provided some Texas schoolchildren with substantially less resources for their education than others. Thus, while on its face the Texas scheme may merely discriminate between local districts, the impact of that discrimination falls directly upon the children whose educational opportunity is dependent upon where they happen to live. Consequently, the District Court correctly concluded that the Texas financing scheme discriminates, from a constitutional perspective, between school children on the basis of the amount of taxable property located within their local districts.

          In my Brother STEWART's view, however, such a description of the discrimination inherent in this case is apparently not sufficient, for it fails to define the 'kind of objectively identifiable classes' that he evidentlyperceives

Page 93

to be necessary for a claim to be 'cognizable under the Equal Protection Clause,' ante, at 62. He asserts that this is also the view of the majority, but he is unable to cite, nor have I been able to find, any portion of the Court's opinion which remotely suggests that there is no objectively identifiable or definable class in this case. In any event, if he means to suggest that an essential predicate to equal protection analysis is the precise identification of the particular individuals who compose the disadvantaged class, I fail to find the source from which he derives such a requirement. Certainly such precision is not analytically necessary. So long as the basis of the discrimination is clearly identified, it is possible to test it against the State's purpose for such discrimination—whatever the standard of equal protection analysis employed.⁵⁴ This is clear from our decision only last Term in Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), where the Court, in striking down Texas' primary filing fees as violative of equal protection, found no impediment to equal protection analysis in the fact that the members of the disadvantaged class could not be readily identified. The Court recognized that the filing-fee system tended 'to deny some voters the opportunity to vote for a candidate of their choosing; at the same time it gives the affluent the power to place on the ballot their own names or the names of persons they favor.' Id., at 144, 92 S.Ct., at 856. The

Page 94

Court also recognized that '(t)his disparity in voting power based on wealth cannot be described by reference to discrete and precisely defined segments of the community as is typical of inequities challenged under the Equal Protection Clause . . ..' Ibid. Nevertheless, it concluded that 'we would ignore reality were we not to recognize that this system falls with unequal weight on voters . . . according to their economic status.' Ibid. The nature of the classification in Bullock was clear, although the precise membership of the disadvantaged class was not. This was enough in Bullock for purposes of equal protection analysis. It is enough here.

          It may be, though, that my Brother STEWART is not in fact demanding precise identification of the membership of the disadvantaged class for purposes of equal protection analysis, but is merely unable to discern with sufficient clarity the nature of the discrimination charged in this case. Indeed, the Court itself displays some uncertainty as to the exact nature of the discrimination and the resulting disadvantaged class alleged to exist in this case. See ante, at 19—20. It is, of course, essential to equal protection analysis to have a firm grasp upon the nature of the discrimination at issue. In fact, the absence of such a clear, articulable understanding of the nature of alleged discrimination in a particular instance may well suggest the absence of any real discrimination. But such is hardly the case here.

          A number of theories of discrimination have, to be sure, been considered in the course of this litigation. Thus, the District Court found that in Texas the poor and minority group members tend to live in property-poor districts, suggesting discrimination on the basis of both personal wealth and race. See 337 F.Supp., at 282 and n. 3. The Court goes to great lengths to discredit the data upon which the District Court relied, and thereby its conclusion that poor people live in property-poor dis-

Page 95

tricts.⁵⁵ Although I have serious doubts as to the correctness of the Court's analysis in rejecting the data submitted below,⁵⁶ I have no need to join issue on these factual disputes.

Page 96

          I believe it is sufficient that the overarching form of discrimination in this case is between the schoolchildren of Texas on the basis of the taxable property wealth of the districts in which they happen to live. To understand both the precise nature of this discrimination and the parameters of the disadvantaged class it is sufficient to consider the constitutional principle which appellees contend is controlling in the context of educational financing. In their complaint appellees asserted that the Constitution does not permit local district wealth to be determinative of educational opportunity.⁵⁷ This is simply another way of saying, as the District Court concluded, that consistent with the guarantee of equal protection of the laws, 'the quality of public education may not be a function of wealth, other than the wealth of the state as a whole.' 337 F.Supp., at 284. Under such a principle, the children of a district are excessively advantaged if that district has more taxable property per pupil than the average amount of taxable property per pupil considering the State as a whole. By contrast, the children of a district are disadvantaged if that district has less taxable property per pupil than the state average. The majority attempts to disparage such a definition of the disadvantaged class as the product of an 'artificially defined level' of district wealth. Ante, at 28. But such is clearly not the case, for this is the

Page 97

definition unmistakably dictated by the constitutional principle for which appellees have argued throughout the course of this litigation. And I do not believe that a clearer definition of either the disadvantaged class of Texas schoolchildren or the allegedly unconstitutional discrimination suffered by the members of that class under the present Texas financing scheme could be asked for, much less needed.⁵⁸ Whether this discrimination, against the schoolchildren of property-poor districts, inherent in the Texas financing scheme, is violative of the Equal Protection Clause is the question to which the must now turn.

          To avoid having the Texas financing scheme struck down because of the interdistrict variations in taxable property wealth, the District Court determined that it was insufficient for appellants to show merely that the State's scheme was rationally related to some legitimate state purpose; rather, the discrimination inherent in the scheme had to be shown necessary to promote a 'compelling state interest' in order to withstand constitutional scrutiny. The basis for this determination was twofold: first, the financing scheme divides citizens on a wealth basis, a classification which the District Court viewed as highly suspect; and second, the discriminatory scheme directly affects what it considered to be a 'fundamental interest,' namely, education.

          This Court has repeatedly held that state discrimination which either adversely affects a 'fundamental interest,' see, e.g., Dunn v. Blumstein, 405 U.S. 330, 336—342, 92 S.Ct. 995, 999 1003, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 629—631, 89 S.Ct. 1322, 1328—1330, 22 L.Ed.2d 600 (1969), or is based on a distinction of a suspect character, see, e.g., Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534

Page 98

(1971); McLaughlin v. Florida, 379 U.S. 184, 191—192, 85 S.Ct. 283, 287—289, 13 L.Ed.2d 222 (1964), must be carefully scrutinized to ensure that the scheme is necessary to promote a substantial, legitimate state interest. See, e.g., Dunn v. Blumstein, supra, 405 U.S., at 342—343, 92 S.Ct., at 1003—1004; Shapiro v. Thompson, supra, 394 U.S., at 634, 89 S.Ct., at 1331. The majority today concludes, however, that the Texas scheme is not subject to such a strict standard of review under the Equal Protection Clause. Instead, in its view, the Texas scheme must be tested by nothing more than that lenient standard of rationality which we have traditionally applied to discriminatory state action in the context of economic and commercial matters. See, e.g., McGowan v. Maryland, 366 U.S., at 425—426, 81 S.Ct., at 1104—1105; Morey v. Doud, 354 U.S. 457, 465—466, 77 S.Ct. 1344, 1349—1351, 1 L.Ed.2d 1485 (1957); F. S. Royster Guano Co. v. Virginia, 253 U.S., at 415, 40 S.Ct., at 561; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78—79, 31 S.Ct. 337, 340—341, 55 L.Ed. 369 (1911). By so doing, the Court avoids the telling task of searching for a substantial state interest which the Texas financing scheme, with its variations in taxable district property wealth, is necessary to further. I cannot accept such an emasculation of the Equal Protection Clause in the context of this case.

          To begin, I must once more voice my disagreement with the Court's rigidified approach to equal protection analysis. See Dandridge v. Williams, 397 U.S. 471, 519—521, 90 S.Ct. 1153, 1178 1180, 25 L.Ed.2d 491 (1970) (dissenting opinion); Richardson v. Belcher, 404 U.S. 78, 90, 92 S.Ct. 254, 261, 30 L.Ed.2d 231 (1971) (dissenting opinion). The Court apparently seeks to establish today that equal protection cases fall into one of two neat categories which dictate the appropriate standard of review—strict scrutiny or mere rationality. But this Court's decisions in the field of equal protection defy such easy categorization. A principled reading of what this Court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the Equal Protec-

Page 99

tion Clause. This spectrum clearly comprehends variations in the degree of care with which the Court will scrutinize particular classifications, depending, I believe, on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn. I find in fact that many of the Court's recent decisions embody the very sort of reasoned approach to equal protection analysis for which I previously argued—that is, an approach in which 'concentration (is) placed upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the asserted state interests in support of the classification.' Dandridge v. Williams, supra, 397 U.S., at 520—521, 90 S.Ct., at 1180 (dissenting opinion).

          I therefore cannot accept the majority's labored efforts to demonstrate that fundamental interests, which call for strict scrutiny of the challenged classification, encompass only established rights which we are somehow bound to recognize from the text of the Constitution itself. To be sure, some interests which the Court has deemed to be fundamental for purposes of equal protection analysis are themselves constitutionally protected rights. Thus, discrimination against the guaranteed right of freedom of speech has called for strict judicial scrutiny. See Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Further, every citizen's right to travel interstate, although nowhere expressly mentioned in the Constitution, has long been recognized as implicit in the premises underlying that document: the right 'was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.' United States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239 (1966). See also Crandall v. Nevada, 6 Wall. 35, 48, 18 L.Ed. 744 (1868). Consequently, the Court has required that a state classification affecting theconstitutionally

Page 100

protected right to travel must be 'shown to be necessary to promote a compelling governmental interest.' Shapiro v. Thompson, 394 U.S., at 634, 89 S.Ct., at 1331. But it will not do to suggest that the 'answer' to whether an interest is fundamental for purposes of equal protection analysis is always determined by whether that interest 'is a right . . . explicitly or implicitly guaranteed by the Constitution,' ante, at 33—34.⁵⁹

          I would like to know where the Constitution guarantees the right to procreate, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), or the right to vote in state elections, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), or the right to an appeal from a criminal conviction, e.g., Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). These are instances in which, due to the importance of the interests at stake, the Court has displayed a strong concern with the existence of discriminatory state treatment. But the Court has never said or indicated that these are interests which independently enjoy fullblown constitutional protection.

          Thus, in Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927), the Court refused to recognize a substantive constitutional guarantee of the right to procreate. Nevertheless, in Skinner v. Oklahoma ex rel. Williamson, supra, 316 U.S., at 541, 62 S.Ct., at 1113, the Court, without impugning the continuing validity of Buck v. Bell, held that 'strict scrutiny' of state discrimination affecting procreation 'is essential' for '(m)arriage and procreation are fundamental to the very existence and survival of the race.' Recently, in Roe v. Wade, 410 U.S. 113, 152—154, 93 S.Ct. 705, 726—727, 35 L.Ed.2d 147 (1973),

Page 101

the importance of procreation has indeed been explained on the basis of its intimate relationship with the constitutional right of privacy which we have recognized. Yet the limited stature thereby accorded any 'right' to procreate is evident from the fact that at the same time the Court reaffirmed its initial decision in Buck v. Bell. See Roe v. Wade, supra, at 154, 93 S.Ct., at 727.

          Similarly, the right to vote in state elections has been recognized as a 'fundamental political right,' because the Court concluded very early that it is 'preservative of all rights.' Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886); see, e.g., Reynolds v. Sims, supra, 377 U.S., at 561—562, 84 S.Ct. at 1381—1382. For this reason, 'this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.' Dunn v. Blumstein, 405 U.S., at 336, 92 S.Ct., at 1000 (emphasis added). The final source of such protection from inequality in the provision of the state franchise is, of course, the Equal Protection Clause. Yet it is clear that whatever degree of importance has been attached to the state electoral process when unequally distributed, the right to vote in state elections has itself never been accorded the statute of an independent constitutional guarantee. ⁶⁰ See Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970); Kramer v. Union Free School District No. 15, 395 U.S. 621, 626—629, 89 S.Ct. 1886, 1889—1891, 23 L.Ed.2d 583 (1969); Harper v. Virginia Board of Elections, 383 U.S. 663, 665, 86 S.Ct. 1079, 1080, 16 L.Ed.2d 169 (1966).

Page 102

          Finally, it is likewise 'true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all.' Griffin v. Illinois, 351 U.S., at 18, 76 S.Ct., at 590. Nevertheless, discrimination adversely affecting access to an appellate process which a State has chosen to provide has been considered to require close judicial scrutiny. See, e.g., Griffin v. Illinois, supra; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).⁶¹

          The majority is, of course, correct when it suggests that the process of determining which interests are fundamental is a difficult one. But I do not think the problem is insurmountable. And I certainly do not accept the view that the process need necessarily degenerate into an unprincipled, subjective 'picking-and-choosing' between various interests or that it must involve this Court in creating 'substantive constitutional rights in the name of guaranteeing equal protection of the laws,' ante, at 33. Although not all fundamental interests are constitutionally guaranteed, the determination of which interests are fundamental should be firmly rooted in the text of the Constitution. The task in every case should be to determine the extent to which constitutionally guaranteed rights are dependent on interests not mentioned in the Constitution. As the nexus between the specific constitutional guarantee and the nonconstitutional interest draws closer, the nonconstitutional interest becomes

Page 103

more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly. Thus, it cannot be denied that interests such as procreation, the exercise of the state franchise, and access to criminal appellate processes are not fully guaranteed to the citizen by our Constitution. But these interests have nonetheless been afforded special judicial consideration in the face of discrimination because they are, to some extent, interrelated with constitutional guarantees. Procreation is now understood to be important because of its interaction with the established constitutional right of privacy. The exercise of the state franchise is closely tied to basic civil and political rights inherent in the First Amendment. And access to criminal appellate processes enhances the integrity of the range of rights⁶² implicit in the Fourteenth Amendment guarantee of due process of law. Only if we closely protect the related interests from state discrimination do we ultimately ensure the integrity of the constitutional guarantee itself. This is the real lesson that must be taken from our previous decisions involving interests deemed to be fundamental.

          The effect of the interaction of individual interests with established constitutional guarantees upon the degree of care exercised by this Court in reviewing state discrimination affecting such interests is amply illustrated by our decision last Term in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). In Baird, the Court struck down as violative of the Equal Protection Clause a state statute which denied unmarried persons access to contraceptive devices on the same basis as married persons. The Court

Page 104

purported to test the statute under its traditional standard whether there is some rational basis for the discrimination effected. Id., at 446—447, 92 S.Ct. at 1034—1035. In the context of commercial regulation, the Court has indicated that the Equal Protection Clause 'is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective.' See, e.g., McGowan v. Maryland, 366 U.S., at 425, 81 S.Ct., at 1105; Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 557, 67 S.Ct. 910, 912, 91 L.Ed. 1093 (1947). And this lenient standard is further weighted in the State's favor by the fact that '(a) statutory discrimination will not be set aside if any state of facts reasonably may be conceived (by the Court) to justify it.' McGowan v. Maryland, supra, 366 U.S., at 426, 81 S.Ct. at 1105. But in Baird the Court clearly did not adhere to these highly tolerant standards of traditional rational review. For although there were conceivable state interests intended to be advanced by the statute—e.g., deterrence of premarital sexual activity and regulation of the dissemination of potentially dangerous articles—the Court was not prepared to accept these interests on their face, but instead proceeded to test their substantiality by independent analysis. See 405 U.S., at 449—454, 92 S.Ct., at 1036—1039. Such close scrutiny of the State's interests was hardly characteristic of the deference shown state classifications in the context of economic interests. See, e.g., Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948); Kotch v. Board of River Port Pilot Comm'rs, supra. Yet I think the Court's action was entirely appropriate, for access to and use of contraceptives bears a close relationship to the individual's constitutional right of privacy. See 405 U.S., at 453 454; id., at 463—464, 92 S.Ct. 1038—1039; Id., at 1043—1044 (White, J., concurring in result). See also Roe v. Wade, 410 U.S., at 152—153, 93 S.Ct., at 726—727.

          A similar process of analysis with respect to the invidiousness of the basis on which a particular classification is drawn has also influenced the Court as to the

Page 105

appropriate degree of scrutiny to to accorded any particular case. The highly suspect character of classifications based on race,⁶³ nationality, ⁶⁴ or alienage⁶⁵ is well established. The reasons why such classifications call for close judicial scrutiny are manifold. Certain racial and ethnic groups have frequently been recognized as 'discrete and insular minorities' who are relatively powerless to protect their interests in the political process. See Graham v. Richardson, 403 U.S., at 372, 91 S.Ct., at 1852; United States v. Carolene Products Co., 304 U.S. 144, 152—153, n. 4, 58 S.Ct. 778, 783—784, 82 L.Ed. 1234 (1938). Moreover, race, nationality, or alienage is "in most circumstances irrelevant' to any constitutionally acceptable legislative purpose, Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 87 L.Ed. 1774.' McLaughlin v. Florida, 379 U.S., at 192, 85 S.Ct., at 288. Instead, lines drawn on such bases are frequently the reflection of historic prejudices rather than legislative rationality. It may be that all of these considerations, which make for particular judicial solicitude in the face of discrimination on the basis of race, nationality, or alienage, do not coalesce—or at least not to the same degree—in other forms of discrimination. Nevertheless, these considerations have undoubtedly influenced the care with which the Court has scrutinized other forms of discrimination.

          In James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972), the Court held unconstitutional a state statute which provided for recoupment from indigent convicts of legal defense fees paid by the State. The Court found that the statute impermissibly differentiated between indigent criminals in debt to the State and civil judgment debtors, since criminal debtors were denied various protective exemptions

Page 106

afforded civil judgment debtors.⁶⁶ The Court suggested that in reviewing the statute under the Equal Protection Clause, it was merely applying the traditional requirement that there be "some rationality" in the line drawn between the different types of debtors. Id., at 140, 92 S.Ct., at 2034. Yet it then proceeded to scrutinize the statute with less than traditional deference and restraint. Thus, the Court recognized 'that state recoupment statutes may betoken legitimate state interests' in recovering expenses and discouraging fraud. Nevertheless, Mr. Justice Powell, speaking for the Court, concluded that

          'these interests are not thwarted by requiring more even treatment of indigent criminal defendants with other classes of debtors to whom the statute itself repeatedly makes reference. State recoupment laws, notwithstanding the state interests they may serve, need not blight in such discriminatory fashion the hopes of indigents for self sufficiency and self respect.' Id., at 141—142, 92 S.Ct., at 2034.

          The Court, in short, clearly did not consider the problems of fraud and collection that the state legislature might have concluded were peculiar to indigent criminal defendants to be either sufficiently important or at least sufficiently substantiated to justify denial of the protective exemptions afforded to all civil judgment debtors, to a class composed exclusively of indigent criminal debtors.

          Similarly, in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), the Court, in striking down a state statute which gave men

Page 107

preference over women when persons of equal entitlement apply for assignment as an administrator of a particular estate, resorted to a more stringent standard of equal protecting review than that employed in cases involving commercial matters. The Court indicated that it was testing the claim of sex discrimination by nothing more than whether the line drawn bore 'a rational relationship to a state objective,' which it recognized as a legitimate effort to reduce the work of probate courts in choosing between competing applications for letters of administration. Id., at 76, 92 S.Ct., at 254. Accepting such a purpose, the Idaho Supreme Court had thought the classification to be sustainable on the basis that the legislature might have reasonably concluded that, as a rule, men have more experience than women in business matters relevant to the administration of an estate. 93 Idaho 511, 514, 465 P.2d 635, 638 (1970). This Court, however, concluded that '(t)o give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment . . ..' 404 U.S., at 76, 92 S.Ct., at 254. This Court, in other words, was unwilling to consider a theoretical and unsubstantiated basis for distinction—however reasonable it might appear—sufficient to sustain a statute discriminating on the basis of sex.

          James and Reed can only be understood as instances in which the particularly invidious character of the classification caused the Court to pause and scrutinize with more than traditional care the rationality of state discrimination. Discrimination on the basis of past criminality and on the basis of sex posed for the Court the spector of forms of discrimination which it implicitly recognized to have deep social and legal roots without necessarily having any basis in actual differences. Still,

Page 108

the Court's sensitivity to the invidiousness of the basis for discrimination is perhaps most apparent in its decisions protecting the interests of children born out of wedlock from discriminatory state action. See Weber v. Aetna Casualty & Surety Co., 406 U.S., 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968).

          In Weber, the Court struck down a portion of a state workmen's compensation statute that relegated unacknowledged illegitimate children of the deceased to a lesser status with respect to benefits than that occupied by legitimate children of the deceased. The Court acknowledged the true nature of its inquiry in cases such as these: 'What legitimate state interest does the classification promote? What fundamental personal rights might the classification endanger?' Id., 406 U.S. at 173, 92 S.Ct., at 1405. Embarking upon a determination of the relative substantiality of the State's justifications for the classification, the Court rejected the contention that the classifications reflected what might be presumed to have been the deceased's preference of beneficiaries as 'not compelling . . . where dependency on the deceased is a prerequisite to anyone's recovery . . ..' Ibid. Likewise, it deemed the relationship between the State's interest in encouraging legitimate family relationships and the burden placed on the illegitimates too tenuous to permit the classification to stand. Ibid. A clear insight into the basis of the Court's action is provided by its conclusion:

          '(I)mposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual—as well as an unjust—way of deterring the parent. Courts are powerless to prevent the social opprobrium suffered by these hapless children, but the Equal Protection

Page 109

          Clause does enable us to strike down discriminatory laws relating to status of birth . . ..' Id., at 175—176, 92 S.Ct., at 1407 (footnote omitted).

          Status of birth, like the color of one's skin, is something which the individual cannot control, and should generally be irrelevant in legislative considerations. Yet illegitimacy has long been stigmatized by our society. Hence, discrimination on the basis of birth—particularly when it affects innocent children warrants special judicial consideration.

          In summary, it seems to me inescapably clear that this Court has consistently adjusted the care with which it will review state discrimination in light of the constitutional significance of the interests affected and the invidiousness of the particular classification. In the context of economic interests, we find that discriminatory state action is almost always sustained, for such interests are generally far removed from constitutional guarantees. Moreover, '(t)he extremes to which the Court has gone in dreaming up rational bases for state regulation in that area may in many instances be ascribed to a healthy revulsion from the Court's earlier excesses in using the Constitution to protect interests that have more than enough power to protect themselves in the legislative halls.' Dandridge v. Williams, 397 U.S., at 520, 90 S.Ct., at 1179 (dissenting opinion). But the situation differs markedly when discrimination against important individual interests with constitutional implications and against particularly disadvantaged or powerless classes is involved. The majority suggests, however, that a variable standard of review would give this Court the appearance of a 'super-legislature.' Ante, at 31. I cannot agree. Such an approach seems to me a part of the guarantees of our Constitution and of the historic experiences with oppression of and discrimination against discrete, powerless minorities which underlie that document. In truth,

Page 110

the Court itself will be open to the criticism raised by the majority so long as it continues on its present course of effectively selecting in private which cases will be afforded special consideration without acknowledging the true basis of its action.⁶⁷

          Opinions such as those in Reed and James seem drawn more as efforts to shield rather than to reveal the true basis of the Court's decisions. Such obfuscated action may be appropriate to a political body such as a legislature, but it is not appropriate to this Court. Open debate of the bases for the Court's action is essential to the rationality and consistency of our decisionmaking process. Only in this way can we avoid the label of legislature and ensure the integrity of the judicial process.

          Nevertheless, the majority today attempts to force this case into the same category for purposes of equal protection analysis as decisions involving discrimination affecting commercial interests. By so doing, the majority singles this case out for analytic treatment at odds with what seems to me to be the clear trend of recent decisions in this Court, and thereby ignores the constitutional importance of the interest at stake and the invidiousness of the particular classification, factors that call for far more than the lenient scrutiny of the Texas financing scheme which the majority pursues. Yet if the discrimination inherent in the Texas scheme is scrutinized with the care demanded by the interest and classification present in this case, the unconstitutionality of that scheme is unmistakable.

          Since the Court now suggests that only interests guaranteed by the Constitution are fundamental for purposes of equal protection analysis, and since it rejects

Page 111

the contention that public education is fundamental, it follows that the Court concludes that public education is not constitutionally guaranteed. It is true that this Court has never deemed the provision of free public education to be required by the Constitution. Indeed, it has on occasion suggested that state-supported education is a privilege bestowed by a State on its citizens. See Missouri ex rel. Gaines v. Canada, 305 U.S., at 349, 59 S.Ct., at 236. Nevertheless, the fundamental importance of education is amply indicated by the prior decisions of this Court, by the unique status accorded public education by our society, and by the close relationship between education and some of our most basic constitutional values.

          The special concern of this Court with the educational process of our country is a matter of common knowledge. Undoubtedly, this Court's most famous statement on the subject is that contained in Brown v. Board of Education, 347 U.S., at 493, 74 S.Ct., at 691:

          'Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. . . .'

          Only last Term, the Court recognized that '(p)roviding public schools ranks at the very apex of the function of a State.' Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct., 1526, 1532, 32 L.Ed.2d 15 (1972). This is clearly borne out by the fact that in 48

Page 112

of our 50 States the provision of public education is mandated by the state constitution.⁶⁸ No other state function is so uniformly recognized⁶⁹ as an essential element of our society's well-being. In large measure, the explanation for the special importance attached to education must rest, as the Court recognized in Yoder, id., at 221, 92 S.Ct., at 1536, on the facts that 'some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system . . .,' and that 'education prepares individuals to be self-reliant and self-sufficient participants in society.' Both facets of this observation are suggestive of the substantial relationship which education bears to guarantees of our Constitution.

          Education directly affects the ability of a child to exercise his First Amendment rights, both as a source and as a receiver of information and ideas, whatever interests he may pursue in life. This Court's decision in Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311 (1957), speaks of the right of students 'to inquire, to study and to evaluate, to gain new maturity and understanding . . .' Thus, we have not casually described the classroom as the "marketplace of ideas." Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967). The opportunity for formal education may not necessarily be the essential determinant of an individual's ability to enjoy throughout his life the rights of free speech andassociation

Page 113

guaranteed to him by the First Amendment. But such an opportunity may enhance the individual's enjoyment of those rights, not only during but also following school attendance. Thus, in the final analysis, 'the pivotal position of education to success in American society and its essential role in opening up to the individual the central experiences of our culture lend it an importance that is undeniable.'⁷⁰

          Of particular importance is the relationship between education and the political process. 'Americans regard the public schools as a most vital civic institution for the preservation of a democratic system of government.' School District of Abington Township v. Schempp, 374 U.S. 203, 230, 83 S.Ct. 1560, 1576, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring). Education serves the essential function of instilling in our young an understanding of and appreciation for the principles and operation of our governmental processes. ⁷¹ Education may instill the interest and provide the tools necessary for political discourse and debate. Indeed, it has frequently been suggested that education is the dominant factor affecting political consciousness and participation.⁷² A system of '(c)ompetition in ideas andgovernmental

Page 114

policies is at the core of our electoral process and of the First Amendment freedoms.' Williams v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968). But of most immediate and direct concern must be the demonstrated effect of education on the exercise of the franchise by the electorate. The right to vote in federal elections is conferred by Art. I, § 2, and the Seventeenth Amendment of the Constitution, and access to the state franchise has been afforded special protection because it is 'preservative of other basic civil and political rights,' Reynolds v. Sims, 377 U.S., at 562, 84 S.Ct., at 1381. Data from the Presidential Election of 1968 clearly demonstrate a direct relationship between participation in the electoral process and level of educational attainment;⁷³ and, as this Court recognized in Gaston County v. United States, 395 U.S. 285, 296, 89 S.Ct. 1720, 1725, 23 L.Ed.2d 309 (1969), the quality of education offered may

Page 115

influence a child's decision to 'enter or remain in school.' It is this very sort of intimate relationship between a particular personal interest and specific constitutional guarantees that has heretofore caused the Court to attach special significance, for purposes of equal protection analysis, to individual interests such as procreation and the exercise of the state franchise.⁷⁴

          While ultimately disputing little of this, the majority seeks refuge in the fact that the Court has 'never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice.' Ante at 36. This serves only to blur what is in fact at stake. With due respect, the issue is neither provision of the most effective speech nor of the most informed vote. Appellees

Page 116

do not now seek the best education Texas might provide. They do seek, however, an end to state discrimination resulting from the unequal distribution of taxable district property wealth that directly impairs the ability of some districts to provide the same educational opportunity that other districts can provide with the same or even substantially less tax effort. The issue is, in other words, one of discrimination that affects the quality of the education which Texas has chosen to provide its children; and, the precise question here is what importance should attach to education for purposes of equal protection analysis of that discrimination. As this Court held in Brown v. Board of Education, 347 U.S., at 493, 74 S.Ct., at 691, the opportunity of education, 'where the state has undertaken to provide it, is a right which must be made available to all on equal terms.' The factors just considered, including the relationship between education and the social and political interests enshrined within the Constitution, compel us to recognize the fundamentality of education and to scrutinize with appropriate care the bases for state discrimination affecting equality of educational opportunity in Texas' school districts⁷⁵—aconclusion

Page 117

which is only strengthened when we consider the character of the classification in this case.

          The District Court found that in discriminating between Texas schoolchildren on the basis of the amount of taxable property wealth located in the district in which they live, the Texas financing scheme created a form of wealth discrimination. This Court has frequently recognized that discrimination on the basis of wealth may create a classification of a suspect character and thereby call for exacting judicial scrutiny. See, e.g., Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 807, 89 S.Ct. 1404, 1407, 22 L.Ed.2d 739 (1969). The majority, however, considers any wealth classification in this case to lack certain essential characteristics which it contends are common to the instances of wealth discrimination that this Court has heretofore recognized. We are told that in every prior case involving a wealth classification, the members of the disadvantaged class have 'shared two distinguishing characteristics: because

Page 118

of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.' Ante, at 20. I cannot agree. The Court's distinctions may be sufficient to explain the decisions in Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); and even Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). But they are not in fact consistent with the decisions in Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), or Griffin v. Illinois, supra, or Douglas v. California, supra.

          In Harper, the Court struck down as violative of the Equal Protection Clause an annual Virginia poll tax of $1.50, payment of which by persons over the age of 21 was a prerequisite to voting in Virginia elections. In part, the Court relied on the fact that the poll tax interfered with a fundamental interest—the exercise of the state franchise. In addition, though, the Court emphasized that '(l)ines drawn on the basis of wealth or property . . . are traditionally disfavored.' 383 U.S., at 668, 86 S.Ct., at 1082. Under the first part of the theory announced by the majority, the disadvantaged class in Harper, in terms of a wealth analysis, should have consisted only of those too poor to afford the $1.50 necessary to vote. But the Harper Court did not see it that way. In its view, the Equal Protection Clause 'bars a system which excludes (from the franchise) those unable to pay a fee to vote or who fail to pay.' Ibid. (Emphasis added.) So far as the Court was concerned, the 'degree of the discrimination (was) irrelevant.' Ibid. Thus, the Court struck down the poll tax in toto; it did not order merely that those too poor to pay the tax be exempted; complete impecunity clearly was not determinative of the limits of the disadvantaged class, nor was it essential to make an equal protection claim.

Page 119

                    Similarly, Griffin and Douglas refute the majority's contention that we have in the past required an absolute deprivation before subjecting wealth classifications to strict scrutiny. The Court characterizes Griffin as a case concerned simply with the denial of a transcript or an adequate substitute therefor, and Douglas as involving the denial counsel. But in both cases the question was in fact whether 'a State that (grants) appellate review can do so in a way that discriminates against some convicted defendants on account of their proverty.' Griffin v. Illinois, supra, 351 U.S., at 18, 76 S.Ct., at 590 (emphasis added). In that regard, the Court concluded that inability to purchase a transcript denies 'the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance,' ibid. (emphasis added), and that 'the type of an appeal a person is afforded . . . hinges upon whether or not he can pay for the assistance of counsel,' Douglas v. California, supra, 372 U.S., at 355—356, 83 S.Ct., at 816 (emphasis added). The right of appeal itself was not absolutely denied to those too poor to pay; but because of the cost of a transcript and of counsel, the appeal was a substantially less meaningful right for the poor than for the rich.⁷⁶ It was on these terms that the Court a denial of equal protection, and those terms clearly encompassed degrees of discrimination on the

Page 120

basis of wealth which do not amount to outright denial of the affected right or interest.⁷⁷

          This is not to say that the form of wealth classification in this case does not differ significantly from those recognized in the previous decisions of this Court. Our prior cases have dealt essentially with discrimination on the basis of personal wealth.⁷⁸ Here, by contrast, the

Page 121

children of the disadvantaged Texas school districts are being discriminated against not necessarily because of their personal wealth or the wealth of their families, but because of the taxable property wealth of the residents of the district in which they happen to live. The appropriate question, then, is whether the same degree of judicial solicitude and scrutiny that has previously been afforded wealth classifications is warranted here.

          As the Court points out, ante, at 28—29, no previous decision has deemed the presence of just a wealth classification to be sufficient basis to call forth rigorous judicial scrutiny of allegedly discriminatory state action. Compare, e.g., Harper v. Virginia Board of Elections, supra, with, e.g., James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971). That wealth classifications alone have not necessarily been considered to bear the same high degree of suspectness as have classifications based on, for instance, race or alienage may be explainable on a number of grounds. The 'poor' may not be seen as politically powerless as certain discrete and insular minority groups. ⁷⁹ Personal proverty may entail much the same social stigma as historically attached to certain racial or ethnic groups.⁸⁰ But personal poverty is not a permanent disability; its shackles may be escaped. Perhaps most importantly, though, personal wealth may not necessarily share the general irrelevance as a basis for legislative action that race or nationality is recognized to have. While the 'poor' have frequently been a

Page 122

legally disadvantaged group,⁸¹ it cannot be ignored that social legislation must frequently take cognizance of the economic status of our citizens. Thus, we have generally gauged the invidiousness of wealth classifications with an awareness of the importance of the interests being affected and the relevance of personal wealth to those interests. See Harper v. Virginia Board of Elections, supra.

          When evaluated with these considerations in mind, it seems to me that discrimination on the basis of group wealth in this case likewise calls for careful judicial scrutiny. First, it must be recognized that while local district wealth may serve other interests,⁸² it bears no relationship whatsoever to the interest of Texas schoolchildren in the educational opportunity afforded them by the State of Texas. Given the importance of that interest, we must be particularly sensitive to the invidious characteristics of any form of discrimination that is not clearly intended to serve it, as opposed to some other distinct state interest. Discrimination on the basis of group wealth may not, to be sure, reflect the social stigma frequently attached to personal poverty. Nevertheless, insofar as group wealth discrimination involves wealth over which the disadvantaged individual has no significant control,⁸³ it represents in fact a more serious basis of discrimination than does personal wealth. For such discrimination

Page 123

is no reflection of the individual's characteristics or his abilities. And thus—particularly in the context of a disadvantaged class composed of children—we have previously treated discrimination on a basis which the individual cannot control as constitutionally disfavored. Cf. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968).

          The disability of the disadvantaged class in this case extends as well into the political processes upon which we ordinarily rely as adequate for the protection and promotion of all interests. Here legislative reallocation of the State's property wealth must be sought in the face of inevitable opposition from significantly advantaged districts that have a strong vested interest in the preservation of the status quo, a problem not completely dissimilar to that faced by underrepresented districts prior to the Court's intervention in the process of reapportionment,⁸⁴ see Baker v. Carr, 369 U.S. 186, 191—192, 82 S.Ct. 691, 695—697, 7 L.Ed.2d 663 (1962).

          Nor can we ignore the extent to which, in contrast to our prior decisions, the State is responsible for the wealth discrimination in this instance. Griffin, Douglas, Williams, Tate, and our other prior cases have dealt with discrimination on the basis of indigency which was attributable to the operation of the private sector. But we have no such simple de facto wealth discrimination here. The means for financing public education in Texas are selected and specified by the State. It is the State that has created local school districts, and tied educational funding to the local property tax and thereby to local district wealth. At the same time, governmentally

Page 124

imposed land use controls have undoubtedly encouraged and rigidified natural trends in the allocation of particular areas for residential or commercial use,⁸⁵ and thus determined each district's amount of taxable property wealth. In short, this case, in contrast to the Court's previous wealth discrimination decisions, can only be seen as 'unusual in the extent to which governmental action is the cause of the wealth classifications.'⁸⁶

          In the final anaylsis, then The invidious characteristics of the group wealth classification present in this case merely serve to emphasize the need for careful judicial scrutiny of the State's justifications for the resulting interdistrict discrimination in the educational opportunity afforded to the schoolchildren of Texas.

          The nature of our inquiry into the justifications for state discrimination is essentially the same in all equal protection cases: We must consider the substantiality of the state interests sought to be served, and we must scrutinize the reasonableness of the means by which the State has sought to advance its interests. See Police Dept. of City of Chicago v. Mosley, 408 U.S., at 95, 92 S.Ct., at 2289. Differences in the application of this test are, in my view, a function of the constitutional importance of the interests at stake and the invidiousness of the particular classification. In terms of the asserted state interests, the Court has indicated that it will require, for instance, a 'compelling,' Shapiro v. Thompson, 394 U.S., at 634, 89 S.Ct., at 1331, or a 'substantial'

Page 125

or 'important,' Dunn v. Blumstein, 405 U.S., at 343, 92 S.Ct., at 1003, state interest to justify discrimination affecting individual interests of constitutional significance. Whatever the differences, if any, in these descriptions of the character of the state interest necessary to sustain such discrimination, basic to each is, I believe, a concern with the legitimacy and the reality of the asserted state interests. Thus, when interests of constitutional importance are at stake, the Court does not stand ready to credit the State's classification with any conceivable legitimate purpose,⁸⁷ but demands a clear showing that there are legitimate state interests which the classification was in fact intended to serve. Beyond the question of the adequacy of the State's purpose for the classification, the Court traditionally has become increasingly sensitive to the means by which a State chooses at act as its action affects more directly interests of constitutional significance. See, e.g., United States v. Robel, 389 U.S. 258, 265, 88 S.Ct. 419, 424, 19 L.Ed.2d 508 (1967); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1961). Thus, by now, 'less restrictive alternatives' analysis is firmly established in equal protection jurisprudence. See Dunn v. Blumstein, supra, 405 U.S., at 343, 92 S.Ct., at 1003; Kramer v. Union Free School District No. 15, 395 U.S., at 627, 89 S.Ct., at 1889. It seems to me that the range of choice we are willing to accord the State in selecting the means by which it will act, and the care with which we scrutinize the effectiveness of the means which the State selects, also must reflect the constitutional importance of the interest affected and the invidiousness of the particular classification. Here, both the nature of the interest and the classification dictate close judicial scrutiny of the purposes which Texas seeks to serve with its present educational financing

Page 126

scheme and of the means it has selected to serve that purpose.

          The only justification offered by appellants to sustain the discrimination in educational opportunity caused by the Texas financing scheme is local educational control. Presented with this justification, the District Court concluded that '(n)ot only are defendants unable to demonstrate compelling state interests for their classifications based upon wealth, they fail even to establish a reasonable basis for these classifications.' 337 F.Supp., at 284. I must agree with this conclusion.

          At the outset, I do not question that local control of public education, as an abstract matter, constitutes a very substantial state interest. We observed only last Term that '(d)irect control over decisions vitally affecting the education of one's children is a need that is strongly felt in our society.' Wright v. Council of the City of Emporia, 407 U.S. 451, 469, 92 S.Ct. 2196, 2206, 33 L.Ed.2d 51 (1972). See also id., at 477—478, 92 S.Ct., at 2210 2211 (Burger, C.J., dissenting). The State's interest in local educational control—which certainly includes questions of educational funding—has deep roots in the inherent benefits of community support for public education. Consequently, true state dedication to local control would present, I think, a substantial justification to weigh against simply interdistrict variations in the treatment of a State's schoolchildren. But I need not now decide how I might ultimately strike the balance were we confronted with a situation where the State's sincere concern for local control inevitably produced educational inequality. For, on this record, it is apparent that the State's purported concern with local control is offered primarily as an excuse rather than as a justification for interdistrict inequality.

          In Texas, statewide laws regulate in fact the most minute details of local public education. For example,

Page 127

the State prescribes required courses.⁸⁸ All textbooks must be submitted for state approval,⁸⁹ and only approved textbooks may be used.⁹⁰ The State has established the qualifications necessary for teaching in Texas public schools and the procedures for obtaining certification.⁹¹ The State has even legislated on the length of the school day.⁹² Texas' own courts have said:

          'As a result of the acts of the Legislature our school system is not of mere local concern but it is statewide. While a school district is local in territorial limits, it is an integral part of the vast school system which is coextensive with the confines of the State of Texas.' Treadaway v. Whitney Independent School District, 205 S.W.2d 97, 99 (Tex.Civ.App.1947).

          See also El Dorado Independent School District v. Tisdale, 3 S.W.2d 420, 422 (Tex.Com.App. 1928).

          Moreover, even if we accept Texas' general dedication to local control in educational matters, it is difficult to find any evidence of such dedication with respect to fiscal matters. It ignores reality to suggest—as the Court does, ante, at 49—50—that the local property tax element of the Texas financing scheme reflects a conscious legislative effort to provide school districts with local fiscal control. If Texas had a system truly dedicated to local fiscal control, one would expect the quality of the educational opportunity provided in each district to vary with the decision of the voters in that district as

Page 128

to the level of sacrifice they wish to make for public education. In fact, the Texas scheme produces precisely the opposite result. Local school districts cannot choose to have the best education in the State by imposing the highest tax rate. Instead, the quality of the educational opportunity offered by any particular district is largely determined by the amount of taxable property located in the district—a factor over which local voters can exercise no control.

          The study introduced in the District Court showed a direct inverse relationship between equalized taxable district property wealth and district tax effort with the result that the property-poor districts making the highest tax effort obtained the lowest per-pupil yield.⁹³ The implications of this situation for local choice are illustrated by again comparing the Edgewood and Alamo Heights School Districts. In 1967—1968, Edgewood, after contributing its share to the Local Fund Assignment, raised only $26 per pupil through its local property tax, whereas Alamo Heights was able to raise $333 per pupil. Since the funds received through the Minimum Foundation School Program are to be used only for minimum professional salaries, transportation costs, and operating expenses, it is not hard to see the lack of local choice with respect to higher teacher salaries to attract more and better teachers, physical facilities, library books, and facilities, special courses, or participation in special state and federal matching funds programs—under which a property-poor district such as Edgewood is forced to labor.⁹⁴ In fact, because of the difference in taxable local property wealth, Edgewood would have to tax itself almost nine times as heavily to obtain the same

Page 129

yield as Alamo Heights.⁹⁵ At present, then, local control is a myth for many of the local school districts in Texas. As one district court has observed, 'rather than reposing in each school district the economic power to fix its own level of per pupil expenditure, the State has so arranged the structure as to guarantee that some districts will spend low (with high taxes) while others will spend high (with low taxes).' Van Dusartz v. Hatfield, 334 F.Supp. 870, 876 (D.C.Minn.1971).

          In my judgment, any substantial degree of scrutiny of the operation of the Texas financing scheme reveals that the State has selected means wholly inappropriate to secure its purported interest in assuring its school districts local fiscal control.⁹⁶ At the same time, appellees have pointed out a variety of alternative financing schemes which may serve the State's purported interest in local control as well as, if not better than, the present scheme without the current impairment of the educational opportunity of vast numbers of Texas schoolchildren.⁹⁷ I see no need, however, to explore the practical or constitutional merits of those suggested alternatives at this time for, whatever their positive or negative features, experience

Page 130

with the present financing scheme impugns any suggestion that it constitutes a serious effort to provide local fiscal control. If for the sake of local education control, this Court is to sustain interdistrict discrimination in the educational opportunity afforded Texas school children, it should require that the State present something more than the mere sham now before us.

          In conclusion, it is essential to recognize that an end to the wide variations in taxable district property wealth inherent in the Texas financing scheme would entail none of the untoward consequences suggested by the Court or by the appellants.

          First, affirmance of the District Court's decisions would hardly sound the death knell for local control of education. It would mean neither centralized decisionmaking nor federal court intervention in the operation of public schools. Clearly, this suit has nothing to do with local decisionmaking with respect to educational policy or even educational spending. It involves only a narrow aspect of local control—namely, local control over the raising of educational funds. In fact, in striking down interdistrict disparities in taxable local wealth, the District Court took the course which is most likely to make true local control over educational decision-making a reality for all Texas school districts.

          Nor does the District Court's decision even necessarily eliminate local control of educational funding. The District Court struck down nothing more than the continued interdistrict wealth discrimination inherent in the present property tax. Both centralized and decentralized plans for educational funding not involving such interdistrict discrimination have been put forward.⁹⁸ The choice

Page 131

among these or other alternatives would remain with the State, not with the federal courts. In this regard, it should be evident that the degree of federal intervention

Page 132

in matters of local concern would be substantially less in this context than in previous decisions in which we have been asked effectively to impose a particular scheme upon the States under the guise of the Equal Protection Clause. See, e.g., Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Cf. Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971).

          Still, we are told that this case requires us 'to condemn the State's judgment in conferring on political subdivisions the power to tax local property to supply revenues for local interests.' Ante, at 40. Yet no one in the course of this entire litigation has ever questioned the constitutionality of the local property tax as a device for raising educational funds. The District Court's decision, at most, restricts the power of the State to make educational funding dependent exclusively upon local property taxation so long as there exists interdistrict disparities in taxable property wealth. But it hardly eliminates the local property tax as a source of educational funding or as a means of providing local fiscal control.⁹⁹

          The Court seeks solace for its action today in the possibility of legislative reform. The Court's suggestions of legislative redress and experimentation will doubtless be of great comfort to the schoolchildren of Texas' disadvantaged districts, but considering the vested interests of wealthy school districts in the preservation of the status quo, they are worth little more. The possibility of legislative action is, in all events, no answer to this Court's duty under the Constitution to eliminate unjustified state discrimination. In this case we have been presented with an instance of such discrimination, in a particularly invidious form, against an individual interest of large constitutional and practical importance. To support the demonstrated discrimination in the provision

Page 133

of educational opportunity the State has offered a justification which, on analysis, takes on at best an ephemeral character. Thus, I believe that the wide disparities in taxable district property wealth inherent in the local property tax element of the Texas financing scheme render that scheme violative of the Equal Protection Clause.¹⁰⁰

          I would therefore affirm the judgment of the District Court.

Page 134

                                    TO OPINION OF MARSHALL, J., DISSENTING
 
                                     REVENUES OF TEXAS SCHOOL DISTRICTS
                        CATEGORIZED BY EQUALIZED PROPERTY VALUES AND SOURCE OF FUNDS
                                             CATEGORIES
 
                                                                                                    Total Revenues
                                                               State and Local                        Per Pupil
 Market Value of                                                Revenues Per      Federal           (State-Local-
 Taxable Property         Local Revenues  State Revenues        Pupil (Columns    Revenues          Federal, Columns
  Per Pupil                 Per Pupil       Per Pupil             1 and 2)        Per Pupil           1, 2 and 4)
 
 
 Above $100,000                $610            $205                 $815             $41                $856
  (10 districts)
 $100,000-$50,000               287             257                  544              66                 610
  (26 districts)
 $50,000-$30,000                224             260                  484              45                 529
  (30 districts)
 $30,000-$10,000                166             295                  461              85                 546
  (40 districts)
 Below $10,000                   63             243                  306             135                 441
 (4 districts)
 

Page 135

      APPENDIX II TO OPINION OF MARSHALL, J., DISSENTING
 
                         TEXAS SCHOOL DISTRICTS CATEGORIZED BY
                          EQUALIZED PROPERTY VALUES, EQUALIZED
                            TAX RATES, AND YIELD OF RATES
 
   CATEGORIES                       EQUALIZED                  YIELD PER PUPIL
  Market Value of                      TAX                     (Equalized Rate
  Taxable Property                    RATES                   Applied to District
    Per Pupil                        ON $100                     Market Value)
 
  Above $100,000                      $.31                            $585
   (10 districts)
  $100,000-$50,000                     .38                             262
  (26 districts)
  $50,000-$30,000                      .55                             213
  (30 districts)
  $30,000-$10,000                      .72                             162
  (40 districts)
  Below $10,000                        .70                              60
  (4 districts)
 

Page 136

                              APPENDIX III TO
                   OPINION OF MARSHALL, J., DISSENTING
 
         SELECTED BEXAR COUNTY, TEXAS, SCHOOL DISTRICTS CATEGORIZED BY
             EQUALIZED PROPERTY VALUATION AND SELECTED INDICATORS
                          OF EDUCATIONAL QUALITY
 
  Selected Districts                Per Cent of   Per Cent of
  From High to Low by Professional  Teachers With          Total Staff   Student-
  Professional
  Market Valuation   Salaries   Per College     Masters   With Emerg- Counselor   Professional
  Per Pupil             Pupil       Degrees     Degrees   ency Permits Ratios    Per 100 Pupils
 
 ALAMO HIEIGHTS          $372          100%         40%         11%       645         4.80
 NORTH EAST               288           99          24           7      1,516         4.50
 SAN ANTONIO              251           98          29          17      2,320         4.00
 NORTH SIDE               258           99          20          17      1,493         4.30
 HARLANDALE               243           94          21          22      1,800         4.00
 EDGEWOOD                 209           96          15          47      3,098         4.06
 

Page 137

                APPENDIX IV TO OPINION OF MARSHALL, J., DISSENTING
 
                      BEXAR COUNTY, TEXAS, SCHOOL DISTRICTS
                       RANKED BY EQUALIZED PROPERTY VALUE
                       AND TAX RATE REQUIRED TO GENERATE
                        HIGHEST YIELD IN ALL DISTRICTS
 
    Districts Ranked from                                   Tax Rate Per $100
     High to Low Market                                      Needed to Equal
    Valuation Per Pupil                                       Highest Yield
 
       ALAMO HEIGHTS                                              $0.68
       JUDSON                                                      1.04
       EAST CENTRAL                                                1.17
       NORTH EAST                                                  1.21
       SOMERSET                                                    1.32
       SAN ANTONIO                                                 1.56
       NORTH SIDE                                                  1.65
       SOUTH WEST                                                  2.10
       SOUTH SIDE                                                  3.03
       HARLANDALE                                                  3.20
       SOUTH SAN ANTONIO                                           5.77
       EDGEWOOD                                                    5.76
 
 

^{1. Not all of the children of these complainants attend public school. One family's children are enrolled in private school 'because of the condition of the schools in the Edgewood Independent School District.' Third Amended Complaint, App. 14.}

^2. The San Antonio Independent School District, whose name this case still bears, was one of seven school districts in the San Antonio metropolitan area that were originally named as defendants. After a pretrial conference, the District Court issued an order dismissing the school districts from the case. Subsequently, the San Antonio Independent School District joined in the plaintiffs' challenge to the State's school finance system and filed an amicus curiae brief in support of that position in this Court.

^3. A three-judge court was properly convened and there are no questions as to the District Court's jurisdiction or the direct appealability of its judgment. 28 U.S.C. §§ 2281, 1253.

^4. The trial was delayed for two years to permit extensive pretrial discovery and to allow completion of a pending Texas legislative investigation concerning the need for reform of its public school finance system. 337 F.Supp. 280, 285 n. 11 (W.D.Tex.1971).

^5. 337 F.Supp. 280. The District Court stayed its mandate for two years to provide Texas an opportunity to remedy the inequities found in its financing program. The court, however, retained jurisdiction to fashion its own remedial order if the State failed to offer an acceptable plan. Id., at 286.

^6. Tex.Const., Art. X, § 1 (1845):

'A general diffusion of knowledge being essential to the preservation of the rights and liberties of the people, it shall be the duty of the legislature of this State to make suitable provision for the support and maintenance of public schools.'

Id., § 2:

'The Legislature shall, as early as practicable, establish free schools throughout the State, and shall furnish means for their support by taxation on property . . ..'

^7. Tex.Const. of 1876, Art. 7, § 3, as amended, Aug. 14, 1883, Vernon's Ann.Tex.St.

^8. Id., Art. 7, §§ 3, 4, 5.

^9. 3 Gammel's Laws of Texas 1847—1854, p. 1461. See Tex.Const. Art. 7, §§ 1, 2, 5 (interpretive commentaries); 1 Report of Governor's Committee on Public School Education, The Challenge and the Chance 27 (1969) (hereinafter Governor's Committee Report).

^10. Tex.Const., Art. 7, § 5 (see also the interpretive commentary); 5 Governor's Committee Report 11—12.

^11. The various sources of revenue for the Available School Fund are cataloged in A Report of the Adequacy of Texas Schools, prepared by Texas State Board of Education, 7—15 (1938) (hereinafter Texas State Bd. of Educ.).

^12. Tex.Const., Art. 7, § 3, as amended, Nov. 5, 1918 (see interpretive commentary).

^13. 1 Governor's Committee Report 35; Texas State Md. of Educ., supra, n. 11, at 5—7; J. Coons, W. Clune, & S. Sugarman, Private Wealth and Public Education 48—49 (1970); E. Cubberley, School Funds and Their Apportionment 21—27 (1905).

^14. By 1940, one-half of the State's population was clustered in its metropolitan centers. 1 Governor's Committee Report 35.

^15. Gilmer-Aikin Committee, To Have What We Must 13 (1948).

^16. Still, The Gilmer-Aikin Bills 11—13 (1950); Texas State Bd. of Educ., supra, n. 11.

^17. R. Still, supra, n. 16, at 12. It should be noted that during this period the median per-pupil expenditure for all schools with an enrollment of more than 200 was approximately $50 per year. During this same period, a survey conducted by the State Board of Education concluded that 'in Texas the best educational advantages offered by the State at present may be had for the median cost of $52.67 per year per pupil in average daily attendance.' Texas State Bd. of Educ., supra, n. 11, at 56.

^18. General Laws of Texas, 46th Legis., Reg.Sess.1939, c. 7, pp. 274—275 ($22.50 per student); General & Spec.Laws of Texas, 48th Legis., Reg.Sess.1943, c. 161, pp. 262—263 ($25 per student).

^19. General & Spec.Laws of Texas, 49th Legis., Reg.Sess.1945, c. 52, pp. 74—75; Still, supra, n. 16, at 12.

^20. For a complete history of the adoption in Texas of a foundation program, see Still, supra, n. 16. See also 5 Governor's Committee Report 14; Texas Research League, Public School Finance Problems in Texas 9 (Interim Report 1972).

^21. For the 1970—1971 school year this state aid program accounted for 48% of all public school funds. Local taxation contributed 41.1% and 10.9% was provided in federal funds. Texas Research League, supra, n. 20, at 9.

^22. 5 Governor's Committee Report 44—48.

^23. At present, there are 1,161 school districts in Texas. Texas Research League, supra, n. 20, at 12.

^24. In 1948, the Gilmer-Aikin Committee found that some school districts were not levying any local tax to support education. Gilmer-Aikin Committee, supra, n. 15, at 16. The Texas State Board of Education Survey found that over 400 common and independent school districts were levying no local property tax in 1935—1936. Texas State Bd. of Educ., supra n. 11, at 39—42.

^25. Gilmer-Aikin Committee, supra, n. 15, at 15.

^26. 1 Governor's Committee Report 51—53.

^27. Texas Research League, supra, n. 20, at 2.

^28. In the years between 1949 and 1967, the average per-pupil expenditure for all current operating expenses increased from $206 to $493. In that same period, capital expenditures increased from $44 to $102 per pupil. 1 Governor's Committee Report 53—54.

^29. Acts 1949, 51st Legis., p. 625, c. 334, Art. 4, Tex.Educ.Code Ann. § 16.302 (1972); see generally 3 Governor's Committee Report 113—146; Berke, Carnevale, Morgan & White, The Texas School Finance Case: A Wrong in Search of a Remedy, 1 J. of L. & Educ. 659, 681—682 (1972).

^30. The family income figures are based on 1960 census statistics.

^31. The Available School Fund, technically, provides a second source of state money. That Fund has continued as in years past (see text accompanying nn. 16—19, supra) to distribute uniform per-pupil grants to every district in the State. In 1968, this Fund allotted $98 per pupil However, because the Available School Fund contribution is always subtracted from a district's entitlement under the Foundation Program, it plays no siginficant role in educational finance today.

^32. While federal assistance has an ameliorating effect on the difference in school budgets between wealthy and poor disdistricts, the District Court rejected an argument made by the State in that court that it should consider the effect of the federal grant in assessing the discrimination claim. 337 F.Supp., at 284. The State has not renewed that contention here.

^33. A map of Bexar County included in the record shows that Edgewood and Alamo Heights are among the smallest districts in the county and are of approximately equal size. Yet, as the figures above indicate, Edgewood's student population is more than four times that of Alamo Heights. This factor obviously accounts for a significant percentage of the differences between the two districts in per-pupil property values and expenditures. If Alamo Heights had as many students to educate as Edgewood does (22,000) its per pupil assessed property value would be approximately $11,100 rather than $49,000, and its per-pupil expenditures would therefore have been considerably lower.

^34. The figures quoted above vary slightly from those utilized in the District Court opinion. 337 F.Supp., at 282. These trivial differences are apparently a product of that court's reliance on slightly different statistical data than we have relied upon.

^35. Although the Foundation Program has made significantly greater contributions to both school districts over the last several years, it is apparent that Alamo Heights has enjoyed a larger gain. The sizable difference between the Alamo Heights and Edgewood grants is due to the emphasis in the State's allocation formula on the guaranteed minimum salaries for teachers. Higher salaries are guaranteed to teachers having more years of experience and possessing more advanced degrees. Therefore, Alamo Heights, which has a greater percentage of experienced personnel with advanced degrees, receives more state support. In this regard, the Texas Program is not unlike that presently in existence in a number of other States. Coones, Clune, Sugarman, supra, n. 13, at 63—125. Because more dollars have been given to districts that already spend more per pupil, such Foundation formulas have been described as 'anti-equalizing.' Ibid. The formula, however, is anti-equalizing only if viewed in absolute terms. The percentage disparity between the two Texas districts is diminshed substantially by state aid. Alamo Heights derived in 1967—1968 almost 13 times as much money from local taxes as Edgewood did. The state aid grants to each district in 1970—1971 lowered the ratio to approximately two to one, i.e., Alamo Heights had a little more than twice as much money to spend per pupil from its combined state and local resources.

^36. Texas Research League, supra, n. 20, at 13.

^37. The Economic Index, which determines each county's share of the total Local Fund Assignment, is based on a complex formula conceived in 1949 when the Foundation Program was instituted. See text, supra, at 9—10. It has frequently been suggested by Texas researchers that the fomula be altered in several respects to provide a more accurate reflection of local taxpaying ability, especially of urban school districts. 5 Governor's Committee, Report 48; Texas Research League, Texas Public School Finance: A Majority of Exceptions 31—32 (2d Interim Report 1972); Berke, Carnevale, Morgan & White, supra, n. 29, at 680—681.

^38. The District Court relied on the findings presented in an affidavit submitted by Professor Berke of Syracuse University. His sampling of 110 Texas school districts demonstrated a direct correlation between the amount of a district's taxable property and its level of per-pupil expenditures. But this study found only a partial correlation between a district's median family income and per-pupil expenditures. The study also shows, in the relatively few districts at the extremes, an inverse correlation between percentage of minorities and expenditures.

      Categorized by Equalized Property Values, Median Family
      Income, and State-Local Revenue
 
    Market Value                 Median                        State &
    of Taxable                   Family        Per Cent         Local
    Property                     Income        Minority        Revenues
    Per Pupil                   From 1960       Pupils         Per Pupil
 
    Above $100,000               $5,900           8%             $815
     (10 districts)
    $100,000-$50,000             $4,425          32%             $544
     (26 districts)
    $50,000-$30,000              $4,900          23%             $483
     (30 districts)
    $30,000-$10,000              $5,050          31%             $462
     (40 districts)
    Below $10,000                $3,325          79%             $305
     (4 districts)
 

Although the correlations with respect to family income and race appear only to exist at the extremes, and although the affiant's methodology has been questioned (see Goldstein, Interdistrict Inequalities in School Financing: A Critical Analysis of Serrano v. Priest and its Progeny, 120 U.Pa.L.Rev. 504, 523—525, nn. 67, 71 (1972)), insofar as any of these correlations is relevant to the constitutional thesis presented in this case we may accept its basic thrust. But see infra, at 27—25. For a defense of the reliability of the affidavit, see Berke, Carnevale, Morgan & White, supra, n. 29.

^39. E.g., Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

^40. E.g., Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964).

^41. See Dunn v. Blumstein, supra, 405 U.S., at 343, 92 S.Ct., at 1003, and the cases collected therein.

^42. Brief for Appellants 11.

^43. Ibid.

^44. Tr. of Oral Arg. 3; Reply Brief for Appellants 2.

^45. E.g., Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

^46. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); McDonald v. Board of Election Com'rs, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973).

^47. See cases cited in text, infra, at 29—30.

^48. Serrano v. Priest, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 (1971); Van Dusartz v. Hatfield, 334 F.Supp. 870 (D.C.Minn.1971); Robinson v. Cahill, 118 N.J.Super. 223, 287 A.2d 187 (1972); Milliken v. Green, 389 Mich. 1, 203 N.W.2d 457 (1972), rehearing granted, Jan. 1973.

^49. In their complaint, appellees purported to represent a class composed of persons who are 'poor' and who reside in school districts having a 'low value of . . . property.' Third Amended Complaint App. 15. Yet appellees have not defined the term 'poor' with reference to any absolute or functional level of impecunity. See text, infra, at 22—23. See also Brief for Appellees 1, 3; Tr. of Oral Arg. 20—21.

^50. Appellees' proof at trial focused on comparative differences in family incomes between residents of wealthy and poor districts. They endeavored, apparently, to show that there exists a direct correlation between personal family income and educational expenditures. See text, infra, at 25—27. The District Court may have been relying on this notion of relative discrimination based on family wealth. Citing appellees' statistical proof, the court emphasized that 'those districts most rich in property also have the highest median family income . . . while the poor property districts are poor in income . . ..' 337 F.Supp., at 282.

^51. At oral argument and in their brief, appellees suggest that description of the personal status of the residents in districts that spend less on education is not critical to their case. In their view, the Texas system is impermissibly discriminatory even if relatively poor districts do not contain poor people. Brief for Appellees 43—44; Tr. of Oral Arg. 20—21. There are indications in the District Court opinion that it adopted this theory of districts discrimination. The opinion repeatedly emphasizes the comparative financial status of districts and early in the opinion it describes appellees' class as being composed of 'all . . . children throughout Texas who live in school districts with low property valuations.' 337 F.Supp., at 281.

^52. Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Eskridge v. Washington State Board of Prisons, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958).

^53. Note, A Statistical Analysis of the School Finance Decisions: On Winning Battles and Losing Wars, 81 Yale L.J. 1303, 1328—1329 (1972).

^54. Id., at 1324 and n. 102.

^55. Id., at 1328.

^56. Each of appellees' possible theories of wealth discrimination is founded on the assumption that the quality of education varies directly with the amount of funds expended on it and that, therefore, the difference in quality between two schools can be determined simplistically by looking at the difference in per-pupil expenditures. This is a matter of considerable dispute among educators and commentators. See nn. 86 and 101, infra.

^57. E.g., Bullock v. Carter, 405 U.S., at 137, 149, 92 S.Ct., at 852, 858; Mayer v. City of Chicago, 404 U.S., at 194, 92 S.Ct., at 414; Draper v. Washington, 372 U.S., at 495—496, 83 S.Ct., at 778—779; Douglas v. California, 372 U.S., at 357, 83 S.Ct., at 816.

^58. Gilmer-Aikin Committee, supra, n. 15, at 13. Indeed, even though local funding has long been a significant aspect of educational funding, the State has always viewed providing an acceptable education as one of its primary functions. See Texas State Bd. of Educ., supra, n. 11, at 1, 7.

^59. Brief for Appellants 35; Reply Brief for Appellants 1.

^60. An educational financing system might be hypothesized, however, in which the analogy to the wealth discrimination cases would be considerably closer. If elementary and secondary education were made available by the State only to those able to pay a tuition assessed against each pupil, there would be a clearly defined class of 'poor' people—definable in terms of their inability to pay the prescribed sum—who would be absolutely precluded from receiving an education. That case would present a far more compelling set of circumstances for judicial assistance than the case before us today. After all, Texas has undertaken to do a good deal more than provide an education to those who can afford it. It has provided what it considers to be an adequate base education for all children and has attempted, though imperfectly, to ameliorate by state funding and by the local assessment program the disparities in local tax resources.

^61. Also, it should be recognized that median income statistics may not define with any precision the status of individual families within any given district. A more dependable showing of comparative wealth discrimination would also examine factors such as the average income, the mode, and the concentration of poor families in any district.

^62. Cf. Jefferson v. Hackney, 406 U.S. 535, 547—549, 92 S.Ct. 1724, 1723—1733, 32 L.Ed.2d 285 (1972); Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1258—1259 (1970); Simon, The School Finance Decisions: Collective Bargaining and Future Finance Systems, 82 Yale L.J. 409, 439—440 (1973).

^63. Supra, at 15 n. 38.

^64. Studies in other States have also questioned the existence of any dependable correlation between a district's wealth measured in terms of assessable property and the collective wealth of families residing in the district measured in terms of median family income. Ridenour & Ridenour, Serrano v. Priest: Wealth and Kansas School Finance, 20 Kan.L. 213, 225 (1972) ('it can be argued that there exists in Kansas almost an inverse correlation: districts with highest income per pupil have low assessed value per pupil, and districts with high assessed value per pupil have low income per pupil'); Davis, Taxpaying Ability: A Study of the Relationship Between Wealth and Income in California Counties, in The Challenge of Change in School Finance, 10th Nat. Educational Assn. Conf. on School Finance 199 (1967). Note, 81 Yale L.J., supra, n. 53. See also Goldstein, supra, n. 38, at 522 527.

^65. Indeed, this is predisely how the plaintiffs in Serrano v. Priest defined the class they purported to represent: 'Plaintiff children claim to represent a class consisting of all public school pupils in California, 'except children in that school district . . . which . . . affords the greatest educational opportunity of all school districts within California." 5 Cal.3d, at 589, 96 Cal.Rptr., at 604, 487 P.2d, at 1244. See also Van Dusartz v. Hatfield, 334 F.Supp., at 873.

^66. Appellees, however, have avoided describing the Texas system as one resulting merely in discrimination between districts per se since this Court has never questioned the State's power to draw reasonable distinctions between political subdivisions within its borders. Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 230—231, 84 S.Ct. 1226, 1232—1233, 12 L.Ed.2d 256 (1964); McGowan v. Maryland, 366 U.S. 420, 427, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961); Salsburg v. Maryland, 346 U.S. 545, 552, 74 S.Ct. 280, 284, 98 L.Ed. 281 (1954).

^67. E.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973). See Mr. Justice MARSHALL'S dissenting opinion, post, at 121.

^68. See Serrano v. Priest, supra; Van Dusartz v. Hatfield, supra; Robinson v. Cahill, 118 N.J.Super. 223, 287 A.2d 187, (1972); Coons, Clune & Sugarman, supra, n. 13, at 339—393; Goldstein, supra, n. 38, at 534—541; Vieira, Unequal Educational Expenditures: Some Minority Views on Serrano v. Priest, 37 Mo.L.Rev. 617, 618—624 (1972); Comment, Educational Financing, Equal Protection of the Laws, and the Supreme Court, 70 Mich.L.Rev. 1324, 1335—1342 (1972); Note, The Public School Financing Cases: Interdistrict Inequalities and Wealth Discrimination, 14 Ariz.L.Rev. 88, 120—124 (1972).

^69. 337 F.Supp., at 283.

^70. E.g., United States v. Guest, 383 U.S. 745, 757—759, 86 S.Ct. 1170, 1177—1179, 16 L.Ed.2d 239 (1966); Oregon v. Mitchell, 400 U.S. 112, 229, 237—238, 91 S.Ct. 260, 317, 321—322, 27 L.Ed.2d 272 (1970) (opinion of Brennan, White, and Marshall, JJ.).

^71. After Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), there could be no lingering question about the constitutional foundation for the Court's holding in Shapiro. In Dandridge, the Court applied the rational-basis test in reviewing Maryland's maximum family grant provision under its AFDC program. A federal district court held the provision unconstitutional, applying a stricter standard of review. In the course of reversing the lower court, the Court distinguished Shapiro properly on the ground that in that case 'the Court found state interference with the constitutionally protected freedom of interstate travel.' Id., at 484 n. 16, 90 S.Ct., at 1161.

^72. The Court refused to apply the strict-scrutiny test despite its contemporaneous recognition in Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970) that 'welfare provides the means to obtain essential food, clothing, housing, and medical care.'

^73. In Eisenstadt, the Court struck down a Massachusetts statute that prohibited the distribution of contraceptive devices, finding that the law failed 'to satisfy even the more lenient equal protection standard.' 405 U.S., at 447 n. 7, 92 S.Ct., at 1035. Nevertheless, in dictum, the Court recited the correct form of equal protection analysis: '(I)f we were to conclude that the Massachusetts statute impinges upon fundamental freedoms under Griswold (v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)), the statutory classification would have to be not merely rationally related to a valid public purpose but necessary to the achievement of a compelling state interest.' Ibid. (emphasis in original).

^74. Dunn fully canvasses this Court's voting rights cases and explains that 'this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.' 405 U.S., at 336, 92 S.Ct., at 1000 (emphasis supplied). The constitutional underpinnings of the right to equal treatment in the voting process can no longer be doubted even though, as the Court noted in Harper v. Virginia Bd. of Elections, 383 U.S., at 665, 86 S.Ct., at 1080, 'the right to vote in state elections is nowhere expressly mentioned.' See Oregon v. Mitchell, 400 U.S., at 135, 138—144, 91 S.Ct., at 270, 271—275 (Douglas, J.) 229, 241—242, 91 S.Ct. 317, 323—324 (Brennan, White, and Marshall, JJ.); Bullock v. Carter, 405 U.S., at 140—144, 92 S.Ct., at 854—856; Kramer v. Union Free School District, 395 U.S. 621, 625—630, 89 S.Ct. 1886, 1888—1889, 23 L.Ed.2d 583 (1969); Williams v. Rhodes, 393 U.S. 23, 29, 30—31, 89 S.Ct. 5, 9, 10—11, 21 L.Ed.2d 24 (1968); Reynolds v. Sims, 377 U.S. 533, 554—562, 84 S.Ct. 1362, 1377—1382, 12 L.Ed.2d 506 (1964); Gray v. Sanders, 372 U.S. 368, 379—381, 83 S.Ct. 801, 807—809, 9 L.Ed.2d 821 (1963).

^75. In Mosley, the Court struck down a Chicago antipicketing ordinance that exempted labor picketing from its prohibitions. The ordinance was held invalid under the Equal Protection Clause after subjecting it to careful scrutiny and finding that the ordinance was not narrowly drawn. The stricter standard of review was appropriately applied since the ordinance was one 'affecting First Amendment interests.' 408 U.S., at 101, 92 S.Ct., at 2293.

^76. Skinner applied the standard of close scrutiny to a state law permitting forced sterilization of 'habitual criminals.' Implicit in the Court's opinion is the recognition that the right of procreation is among the rights of personal privacy protected under the Constitution. See Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973).

^77. See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389—390, 89 S.Ct. 1794, 1806—1807, 23 L.Ed.2d 371 (1969); Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); Lamont v. Postmaster General, 381 U.S. 301, 306—307, 85 S.Ct. 1493, 1496—1497, 14 L.Ed.2d 398 (1965).

^78. Since the right to vote, per se, is not a constitutionally protected right, we assume that appellees' references to that right are simply shorthand references to the protected right, implicit in our constitutional system, to participate in state elections on an equal basis with other qualified voters whenever the State has adopted an elective process for determining who will represent any segment of the State's population. See n. 74, supra.

^79. The States have often pursued their entirely legitimate interest in assuring 'intelligent exercise of the franchise,' Katzenbach v. Morgan, 384 U.S. 641, 655, 86 S.Ct. 1717, 1726, 16 L.Ed.2d 828 (1966), through such devices as literacy tests and age restrictions on the right to vote. See ibid.; Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). And, where those restrictions have been found to promote intelligent use of the ballot without discriminating against those racial and ethnic minorities previously deprived of an equal educational opportunity, this Court has upheld their use. Compare Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), with Oregon v. Mitchell, supra, 400 U.S., at 133, 91 S.Ct., at 269 (Black, J.), 135, 144—147, 91 S.Ct. 270, 274 276 (Douglas, J.), 152, 216—217, 91 S.Ct. 279, 310—311 (Harlan, j.), 229, 231—236, 91 S.Ct. 317, 318—321 (Brennan, White, and Marshall, JJ.), 281, 282—284, 91 S.Ct. 343—344 (Stewart, J.), and Gaston County v. United States, 395 U.S. 285, 89 S.Ct. 1720, 23 L.Ed.2d 309 (1969).

^80. See Schoettle, The Equal Protection Clause in Public Education, 71 Col.L.Rev. 1355, 1389—1390 (1971); Vieira, supra, n. 68, at 622—623; Comment, Tenant Interest Representation: Proposal for a National Tenants' Association, 47 Tex.L.Rev. 1160, 1172 1173, n. 61 (1969).

^81. Katzenbach v. Morgan involved a challenge by registered voters in New York City to a provision of the Voting Rights Act of 1965 that prohibited enforcement of a state law calling for English literacy tests for voting. The law was suspended as to residents from Puerto Rico who had completed at least six years of education at an 'American-flag' school in that country even though the language of instruction was other than English. This Court upheld the questioned provision of the 1965 Act over the claim that it discriminated against those with a sixth-grade education obtained in non-English-speaking schools other than the ones designated by the federal legislation.

^82. Cf. Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Hargrave v. Kirk, 313 F.Supp. 944 (M.D.Fla.1970), vacated, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971).

^83. See Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971); McDonald v. Board of Election Com'rs, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969).

^84. See, e.g., Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 10 S.Ct. 533, 33 L.Ed. 892 (1890); Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 508—509, 57 S.Ct. 868, 871—872, 81 L.Ed. 1245 (1937); Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959).

^85. Those who urge that the present system be invalidated offer little guidance as to what type of school financing should replace it. The most likely result of rejection of the existing system would be state-wide financing of all public education with funds derived from taxation of property or from the adoption or expansion of sales and income taxes. See Simon, supra, n. 62. The authors of Private Wealth and Public Education, supra, n. 13, at 201—242, suggest an alternative scheme, known as 'district power equalizing.' In simplest terms, the State would guarantee that at any particular rate of property taxation the district would receive a stated number of dollars regardless of the district's tax base. To finance the subsidies to 'poorer' districts, funds would be taken away from the 'wealthier' districts that, because of their higher property values, collect more than the stated amount at any given rate. This is not the place to weigh the arguments for an against 'district power equalizing,' beyond noting that commentators are in disagreement as to whether it is feasible, how it would work, and indeed whether it would violate the equal protection theory underlying appellees' case. President's Commission on School Finance, Schools, People, & Money 32—33 (1972); Bateman & Brown. Some Reflections on Serrano v. Priest, 49 J. Urban L. 701, 706—708 (1972); Brest, Book Review, 23 Stan.L.Rev. 591, 594—596 (1971); Goldstein, supra, n. 38, at 542 543; Wise, School Finance Equalization Lawsuits: A Model Legislative Response, 2 Yale Rev. of L. & Soc. Action 123, 125 (1971); Silard & White, Intrastate Inequalities in Public Education: The Case for Judicial Relief Under the Equal Protection Clause, 1970 Wis.L.Rev. 7, 29—30.

^86. The quality-cost controversy has received considerable attention. Among the notable authorities on both sides are the following: C. Jencks, Inequality (1972); C. Silberman, Crisis in the Classroom (1970); U.S. Office of Education, Equality of Educational Opportunity (1966) (the Coleman Report); On Equality of Educational Opportunity (F. Mosteller & D. Moynihan eds. 1972); J. Guthrie, G. Kleindorfer, H. Levin & R. Stout, Schools and Inequality; President's Commission on School Finance, supra, n. 85; Swanson, The Cost-Quality Relationship, in The Challenge of Change in School Finance, 10th Nat. Educational Assn. Conf. on School Finance 151 (1967).

^87. See the results of the Texas Governor's Committee's statewide survey on the goals of education in that State. 1 Governor's Committee Report 59—68. See also Goldstein, supra, n. 38, at 519—522; Schoettle, supra, n. 80; authorities cited in n. 86, supra.

^88. Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 530, 532, 79 S.Ct. 437, 442, 444, 3 L.Ed.2d 480 (1959) (Brennan, J., concurring); Katzenbach v. Morgan, 384 U.S., at 659, 661, 86 S.Ct., at 1731, 1732 (Harlan, J., dissenting).

^89. In 1970 Texas expended approximately.$2.1 billion for education and a little over one billion came from the Minimum Foundation Program. Texas Research League, supra, n. 20, at 2.

^90. Tex.Educ.Code Ann. § 16.13 (1972) V.T.C.A.

^91. Id., § 16.18.

^92. Id., § 16.15.

^93. Id., §§ 16.16, 16.17, 16.19.

^94. Id., §§ 16.45, 16.51—16.63.

^95. Id., §§ 12.01—12.04.

^96. Id., § 11.26(a)(5).

^97. Id., § 16.301 et seq.

^98. See supra, at 13—14.

^99. Gilmer-Aikin Committee, supra, n. 15, at 15.

^100. There is no uniform statewide assessment practice in Texas. Commercial property, for example, might be assessed at 30% of market value in one county and at 50% in another. 5 Governor's Committee Report 25—26; Berke, Carnevale, Morgan & White, supra, n. 29, at 666—667, n. 16.

^101. Texas Research League, supra, n. 20, at 18. Texas, in this regard, is not unlike most other States. One commentator has observed that 'disparities in expenditures appear to be largely explained

by variations in teacher salaries.' Simon, supra, n. 62, at 413.

As previously noted, see text accompanying n. 86, supra, the extent to which the quality of education varies with expenditure per pupil is debated inconclusively by the most thoughtful students of public education. While all would agree that there is a correlation up to the point of providing the recognized essentials in facilities and academic opportunities, the issues of greatest disagreement include the effect on the quality of education of pupil-teacher ratios and of higher teacher salary schedules. E.g., Office of Education, supra, n. 86, at 316—319. The state funding in Texas is designed to assure, on the average, one teacher for every 25 students, which is considered to be a favorable ratio by most standards. Whether the minimum salary of $6,000 per year is sufficient in Texas to attract qualified teachers may be more debatable, depending in major part upon the location of the school district. But there appear to be few empirical data that support the advantage of any particular pupil-teacher ratio or that document the existence of a dependable correlation between the level of public school teachers' salaries and the quality of their classroom instruction. An intractable problem in dealing with teachers' salaries is the absence, up to this time, of satisfactory techniques for judging their ability or performance. Relatively few school systems have merit plans of any kind, with the result that teachers' salaries are usually increased across the board in a way which tends to reward the least deserving on the same basis as the most deserving. Salaries are usually raised automatically on the basis of length of service and according to predetermined 'steps,' extending over 10- to 12-year periods.

^102. President's Commission on School Finance, supra, n. 85, at 9. Until recently, Hawaii was the only State that maintained a purely state-funded educational program. In 1968, however, that State amended its educational finance statute to permit counties to collect additional funds locally and spend those amounts on its schools. The rationale for that recent legislative choice is instructive on the question before the Court today:

'Under existing law, counties are precluded from doing anything in this area, even to spend their own funds if they so desire. This corrective legislation is urgently needed in order to allow counties to go above and beyond the State's standards and provide educational facilities as good as the people of the counties want and are willing to pay for. Allowing local communities to go above and beyond established minimums to provide for their people encourages the best features of democratic government.' Haw.Sess.Laws, 1968, Act 38, § 1.

^103. See text accompanying n. 7, supra.

^104. G. Strayer & R. Haig, The Financing of Education in the State of New York (1923). For a thorough analysis of the contribution of these reformers and of the prior and subsequent history of educational finance, see Coons, Clune & Sugarman, supra, n. 13, at 39—95.

^105. J. Coleman, Forward to Strayer & Haig, supra, at vii.

^106. New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 311, 52 S.Ct. 371, 375, 387, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting).

^107. Mr. Justice WHITE suggests in his dissent that the Texas system violates the Equal Protection Clause because the means it has selected to effectuate its interest in local autonomy fail to guarantee complete freedom of choice to every district. He places special emphasis on the statutory provision that establishes a maximum rate of $1.50 per $100 valuation at which a local school district may tax for school maintenance. Tex.Educ.Code Ann. § 20.04(d) (1972). The maintenance rate in Edgewood when this case was litigated in the District Court was $.55 per $100, barely one-third of the allowable rate. (The tax rate of $1.05 per $100, see supra, at 12, is the equalized

rate for maintenance and for the retirement of bonds.) Appellees do not claim that the ceiling presently bars desired tax increases in Edgewood or in any other Texas district. Therefore, the constitutionality of that statutory provision is not before us and must await litigation in a case in which it is properly presented. Cf. Hargrave v. Kirk, 313 F.Supp. 944 (M.D.Fla.1970), vacated, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971).

^108. Mr. Justice MARSHALL states in his dissenting opinion that the State's asserted interest in local control is a 'mere sham,' post, at 130, and that it has been offered, not as a legitimate justification, but 'as an excuse . . . for interdistrict inequality.' Id., at 126. In addition to asserting that local control would be preserved and possibly better served under other systems—a consideration that we find irrelevant for the purpose of deciding whether the system may be said to be supported by a legitimate and reasonable basis—the dissent suggests that Texas' lack of good faith may be demonstrated

by examining the extent to which the State already maintains considerable control. The State, we are told, regulates 'the most minute details of local public education,' ibid., including textbook selection, teacher qualifications, and the length of the school day. This assertion, that genuine local control does not exist in Texas, simply cannot be supported. It is abundantly refuted by the elaborate statutory division of responsibilities set out in the Texas Education Code. Although policy decision-making and supervision in certain areas are reserved to the State, the day-to-day authority over the 'management and control' of all public elementary and secondary schools is squarely placed on the local school boards. Tex.Educ.Code Ann. §§ 17.01, 23.26 (1972). Among the innumerable specific powers of the local school authorities are the following: the power of eminent domain to acquire land for the construction of school facilities, id., §§ 17.26, 23.26; the power to hire and terminate teachers and other personnel, id., §§ 13.101—13.103; the power to designate conditions of teacher employment and to establish certain standards of educational policy, id., § 13.901; the power to maintain order and discipline, id., § 21.305, including the prerogative to suspend students for disciplinary reasons, id., § 21.301; the power to decide whether to offer a kindergarten program, id., §§ 21.131—21.135, or a vocational training program, id., § 21.111, or a program of special education for the handicapped, id., § 11.16; the power to control the assignment and transfer of students, id., §§ 21.074—21.080; and the power to operate and maintain a school bus program, id., § 16.52. See also Pervis v. LaMarque Ind. School Dist., 328 F.Supp. 638, 642—643 S.D.Tex.1971), reversed, 466 F.2d 1054 (CA5 1972); Nichols v. Aldine Ind. School Dist., 356 S.W.2d 182 (Tex.Civ.App.1962). Local school boards also determine attendance zones, location of new schools, closing of old ones, school attendance hours (within limits), grading and promotion policies subject to general guidelines, recreational and athletic policies, and a myriad of other matters in the routine of school administration. It cannot be seriously doubted that in Texas education remains largely a local function, and that the preponderating bulk of all decisions affecting the schools is made and executed at the local level, guaranteeing the greatest participation by those most directly concerned.

^109. This theme—that greater state control over funding will lead to greater state power with respect to local educational programs and policies—is a recurrent one in the liternature on financing public education. Professor Simon, in his thoughtful analysis of the political ramifications of this case, states that one of the most likely consequences of the District Court's decision would be an inerease in the centralization of school finance and an increase in the extent of collective bargaining by teacher unions at the state level. He suggests that the subjects for bargaining may include many 'non-salary' items, such as teaching loads, class size, curricular and program choices, questions of student discipline, and selection of administrative personnel—matters traditionally decided heretofore at the local level. Simon, supra, n. 62, at 434—436. See, e.g., Coleman, The Struggle for Control of Education, in Education and Social Policy: Local Control of Education 64, 77—79 (C. Bowers, I. Housego & D. Dyke eds. 1970); J Conant, The Child, The Parent, and The State 27 (1959) ('Unless a local community, through its school board, has some control over the purse, there can be little real feeling in the community that the schools are in fact local schools . . .'); Howe, Anatomy of a Revolution, in Saturday Review 84, 88 (Nov. 20, 1971) ('It is an axiom of American politics that control and power follow money . . .'); R. Hutchinson, State-Administered Locally-Shared Taxes 21 (1931) ('(S)tate administration of taxation is the first step toward state control of the functions supported by these taxes . . .'). Irrespective of whether one regards such prospects as detrimental, or whether he agrees that the consequence is inevitable, it certainly cannot be doubted that there is a rational basis for this concern on the part of parents, educators, and legislators.

^110. This Court has never doubted the propriety of maintaining political subdivisions within the States and has never found in the Equal Protection Clause any per se rule of 'territorial uniformity.' McGowan v. Maryland, 366 U.S., at 427, 81 S.Ct., at 1105. See also Griffin v. County School Board of Prince Edward County, 377 U.S., at 230—231, 84 S.Ct., at 1232 1233; Salsburg v. Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 (1954). Cf. Board of Education of, etc., Muskogee v. Oklahoma, 409 F.2d 665, 668 (CA10 1969).

^111. Any alternative that calls for significant increases in expenditures for education, whether financed through increases in property taxation or through other sources of tax dollars, such as income and sales taxes, is certain to encounter political barriers. At a time when nearly every State and locality is suffering from fiscal undernourishment, and with demands for services of all kinds burgeoning and with weary taxpayers already resisting tax increases, there is considerable reason to question whether a decision of this Court nullifying present state taxing systems would result in a marked increase in the financial commitment to education. See Senate Select Committee on Equal Educational Opportunity, 92d Cong., 2d Sess., Toward Equal Educational Opportunity 339—345 (Comm.Print 1972); Berke & Callahan, Serrano v. Priest: Milestone or Millstone for School Finance, 21 J.Pub.L. 23, 25—26 (1972); Simon, supra, n. 62, at 420 421. In Texas, it has been calculated that $2.4 billion of additional school funds would be required to bring all schools in that State up to the present level of expenditure of all but the wealthiest districts—an amount more than double that currently being spent on education. Texas Research League, supra, n. 20, at 16—18. An amicus curiae brief filed on behalf of almost 30 States, focusing on these practical consequences, claims with some justification that 'each of the undersigned states . . . would suffer severe financial stringency.' Brief of Amici Curiae in Support of Appellants 2 (filed by Montgomery county, Md., et al.).

^112. See Note, supra, n. 53. See also authorities cited n. 114, infra.

^113. See Goldstein, supra, n. 38, at 526; Jencks, supra, n. 86, at 27; U.S. Comm'n on Civil Rights, Inequality in School Financing: The Role of the Law 37 (1972). Coons, Clune & Sugarman, supra, n. 13, at 356—357, n. 47, have noted that in California, for example, (f)ifty-nine percent . . . of minority students live in districts above the median (average valuation per pupil.)' In Bexar County, the largest district by far—the San Antonio Independent School District—is above the local average in both the amount of taxable wealth per pupil and in median family income. Yet 72% of its students are Mexican-Americans. And, in 1967—1968 it spent only a very few dollars less per pupil than the North East and North Side Independent School Districts, which have only 7% and 18% Mexican—American enrollment respectively. Berke, Carnevale, Morgan & White, supra, n. 29, at 673.

^114. See Senate Select Committee on Equal Educational Opportunity, 92d Cong., 2d Sess., Issues in School Finance 129 (Comm.Print 1972) (monograph entitled Inequities in School Finance prepared by Professors Berke and Callhan); U.S. Office of Education, Finances of Large-City School Systems: A Comparative Analysis (1972) (HEW publication); U.S. Comm'n on Civil Rights, supra, n. 113, at 33—36; Simon, supra, n. 62, at 410—411, 418.

^1. See New York Times, Mar. 11, 1973, p. 1, col. 1.

^2. There is one notable exception to the above statement: It has been established in recent years that the Equal Protection Clause confers the substantive right to participate on an equal basis with other qualified voters whenever the State has adopted an electoral process for determining who will represent any segment of the State's population. See, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583; Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274. But there is no constitutional right to vote, as such. Minor v. Happersett, 21 Wall. 162, 22 L.Ed. 627. If there were such a right, both the Fifteenth Amendment and the Nineteenth Amendment would have been wholly unnecessary.

^3. But see Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92.

^4. See Oyama v. California, 332 U.S. 633, 644—646, 68 S.Ct. 269, 274—275, 92 L.Ed. 249.

^5. See Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534.

^6. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. 'Indigency' means actual or functional indigency; it does not mean comparative poverty vis-a -vis comparative affluence. See James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678.

^7. See Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56; Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768.

^8. See. e.g., Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (free speech); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (freedom of interstate travel); Williams v Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (freedom of association); Skinner v. Oklahoma, ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 ('liberty' conditionally protected by Due Process Clause of Fourteenth Amendment).

^9. See Katzenbach v. Morgan, 384 U.S. 641, 660, 86 S.Ct. 1731, 1732, 16 L.Ed.2d 828 (Harlan, J., dissenting).

^1. The heart of the Texas system is embodied in an intricate series of statutory provisions which make up Chapter 16 of the Texas Education Code, Tex.Educ.Code Ann. § 16.01 et seq. See also Tex.Educ.Code Ann. § 15.01 et seq., and § 20.10 et seq.

^2. The figures discussed are from Plaintiffs' Exhibits 7, 8, and 12. The figures are from the 1967—1968 school year. Because the various exhibits relied upon different attendance totals, the per-pupil results do not precisely correspond to the gross figures quoted. The disparity between districts, rather than the actual figures, is the important factor.

^3. Brief for Appellants 11—13, 35.

^4. Variable assessment practices are also revealed in this record. Appellants do not, however, contend that this factor accounts, even to a small extent, for the interdistrict disparities.

^5. The per-pupil funds received from state, federal, and other sources, while not precisely equal, do not account for the large differential and are not directly attacked in the present case.

^6. The State of Texas appears to concede that the choice of whether or not to go beyond the state-provided minimum 'is easier for some districts than for others. Those districts with large amounts of taxable property can produce more revenue at a lower tax rate and will provide their children with a more expensive education.' Brief for Appellants 35. The State nevertheless insists that districts have a choice and that the people in each district have exercised that choice by providing some real property tax money over and above the mimimum funds guaranteed by the State. Like the majority, however, the State fails to explain why the Equal Protection Clause is not violated, or how its goal of providing local government with realistic choices as to how much money should be expended on education is implemented, where the system makes it much more difficult for some than for others to privide additional educational funds and where, as a practical and legal matter, it is impossible for some districts to provide the educational budgets that other districts can make available from real property tax revenues.

^1. See Van Dusartz v. Hatfield, 334 F.Supp. 870, (D.C.Minn.1971); Milliken v. Green, 389 Mich. 1, 203 N.W.2d 457 (1972), rehearing granted, Jan. 1973; Serrano v. Priest, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 (1971); Robinson v. Cahill, 118 N.J.Super. 223, 287 A.2d 187, 119 N.J.Super. 40, 289 A.2d 569 (1972); Hollins v. Shofstall, Civil No. C—253652 (Super.Ct.Maricopa County, Ariz., July 7, 1972). See also Sweetwater County Planning Com. for the Organization of School Districts v. Hinkle, 491 P.2d 1234 (Wyo. 1971), juris. relinquished, 493 P.2d 1050 (Wyo.1972).

^2. The District Court in this case postponed decision for some two years in the hope that the Texas Legislature would remedy the gross disparities in treatment inherent in the Texas financing scheme. It was only after the legislature failed to act in its 1971 Regular Session that the District Court, apparently recognizing the lack of hope for self-initiated legislative reform, rendered its decision. See Texas Research League, Public School Finance Problems in Texas 13 (Interim Report 1972). The strong vested interest of property-rich districts in the existing property tax scheme poses a substantial barrier to self-initiated legislative reform in educational financing. See N.Y. Times, Dec. 19, 1972, p. 1, col. 1.

^3. Texas provides its school districts with extensive bonding authority to obtain capital both for the acquisition of school sites and 'the construction and equipment of school buildings,' Tex.Educ.Code Ann. § 20.01 (1972), and for the acquisition, construction, and maintenance of 'gymnasia, stadia, or other recreational facilities,' id., §§ 20.21—20.22. While such private capital provides a fourth source of revenue, it is, of course, only temporary in nature since the principal and interest of all bonds must ultimately be paid out of the receipts of the local ad valorem property tax, see id., §§ 20.01, 20.04, except to the extent that outside revenues derived from the operation of certain facilities, such as gymnasia, are employed to repay the bonds issued thereon, see id., §§ 20.22, 20.25.

^4. See Tex.Const., Art. 7, § 3; Tex.Educ.Code Ann. §§ 20.01 20.02. As a part of the property tax scheme, bonding authority is conferred upon the local school districts, see n. 3, supra.

^5. See Tex.Educ.Code Ann. § 20.04.

^6. For the 1970—1971 school year, the precise figure was 41.1%. See Texas Research League, supra, n. 2, at 9.

^7. See Tex.Educ.Code Ann. § 20.04.

Theoretically, Texas law limits the tax rate for public school maintenance, see id., § 20.02, to $1.50 per $100 valuation, see id., § 20.04(d). However, it does not appear that any Texas district presently taxes itself at the highest rate allowable, although some poor districts are approaching it, see App. 174.

^8. Under Texas law local districts are allowed to employ differing bases of assessment—a fact that introduces a third variable into the local funding. See Tex.Educ.Code Ann. § 20.03. But neither party has suggested that this factor is responsible for the disparities in revenues available to the various districts. Consequently, I believe we must deal with this case on the assumption that differences in local methods of assessment do not meaningfully affect the revenue-raising power of local districts relative to one another. The Court apparently admits as much. See ante, at 46. It should be noted, moreover, that the main set of data introduced before the District Court to establish the disparities at issue here was based upon 'equalized taxable property' values which had been adjusted to correct for differing methods of assessment. See App. C to Affidavit of Professor Joel S. Berke.

^9. Texas has approximately 1,200 school districts.

^10. See Appendix I, post, p. 134.

^11. See Ibid. Indeed, appellants acknowledge that the relevant data from Professor Berke's affidavit show ' a very positive correlation, 0.973, between market value of taxable property per pupil and state and local revenues per pupil.' Reply Brief for Appellants 6 n. 9.

While the Court takes issue with much of Professor Berke's data and conclusions, ante, at 15—16, n. 38 and 25—27, I do not understand its criticisms to run to the basic finding of a correlation between taxable district property per pupil and local revenues per pupil. The critique of Professor Berke's methodology upon which the Court relies, see Goldstein, Interdistrict Inequalities in School Financing: A Critical Analysis of Serrano v. Priest and its Progeny, 120 U.Pa.L.Rev. 504, 523—525, nn. 67, 71 (1972), is directed only at the suggested correlations between fimily income and taxable district wealth and between race and taxable district wealth. Obviously, the appellants do not question the relationship in Texas between taxable district wealth and per-pupil expenditures; and there is no basis for the Court to do so, whatever the criticisms that may be leveled at other aspects of Professor Berke's study, see infra, n. 55.

^12. See Appendix II, post, p. 135.

^13. See ibid.

^14. For the 1970—1971 school year, the precise figure was 10.9%. See Texas Research League, supra, n. 2, at 9.

^15. Appellants made such a contention before the District Court but apparently have abandoned it in this Court. Indeed, data introduced in the District Court simply belie the argument that federal funds have a significant equalizing effect. See Appendix I, post, p. 134. And, as the District Court observed, it does not follow that remedial action by the Federal Government would excuse any unconstitutional discrimination effected by the state financing scheme. 337 F.Supp. 280, 284.

^16. For the 1970—1971 school year, the precise figure was 48%. See Texas Research League, supra, n. 2, at 9.

^17. See Tex.Const., Art. 7, § 5 (Supp.1972). See also Tex.Educ.Code Ann. § 15.01(b).

^18. See Tex.Educ.Code Ann. § 15.01(b).

The Permanent School Fund is, in essence, a public trust initially endowed with vast quantities of public land, the sale of which has provided an enormous corpus that in turn produces substantial annual revenues which are devoted exclusively to public education. See Tex.Const., Art. 7, § 5 (Supp.1972). See also 5 Report of Governor's Committee on Public School Education, The Challenge and the Chance 11 (1969) (hereinafter Governor's Committee Report).

^19. This is determined from the average daily attendance within each district for the preceding year. Tex.Educ.Code Ann. § 15.01(c).

^20. See id., §§ 16.01—16.975.

^21. See id., §§ 16.71(2), 16.79.

^22. See id., §§ 16.301—16.316, 16.45, 16.51—16.63.

^23. See id., §§ 16.72—16.73, 16.76—16.77.

^24. See id., §§ 16.74—19.76. The formula for calculating each district's share is described in 5 Governor's Committee Report 44 48.

^25. See Tex.Educ.Code Ann. § 16.01.

^26. See 5 Governor's Committee Report 40—41.

^27. See id., at 45—67; Texas Research League, Texas Public Schools Under the Minimum Foundation Program—An Evaluation: 1949 4954, pp. 67—68 (1954).

^28. Technically, the economic index involves a two-step calculation. First, on the basis of the factors mentioned above, each Texas county's share of the Local Fund Assignment is determined. Then each county's share is divided among its school districts on the basis of their relative shares of the county's assessable wealth. See Tex.Educ.Code Ann. §§ 16.74—16.76; 5 Governor's Committee Report 43—44; Texas Research League, Texas Public School Finance: A Majority of Exceptions 6—8 (2d Interim Report 1972).

^29. 5 Governor's Committee Report 48, quoting statement of Dr. Edgar Morphet.

^30. The extraordinarily complex standards are summarized in 5 Governor's Committee Report 41—43.

^31. The key element of the Minimum Foundation School Program is the provision of funds for professional salaries—more particularly, for teacher salaries. The Program provides each district with funds to pay its professional payroll as determined by certain state standards. See Tex.Educ.Code Ann. §§ 16.301 16.316. If the district fails to pay its teachers at the levels determined by the state standards it receives nothing from the Program. See id., § 16.301(c). At the same time, districts are free to pay their teachers salaries in excess of the level set by the state standards, using local revenues—that is, property tax revenue—to make up the difference, see id., § 16.301(a).

The state salary standards focus upon two factors: the educational level and the experience of the district's teachers. See id., §§ 16.301—16.316. The higher these two factors are, the more funds the district will receive from the Foundation Program for professional salaries.

It should be apparent that the net effect of this scheme is to provide more assistance to property-rich districts than to property-poor ones. For rich districts are able to pay their teachers, out of local funds, salary increments above the state minimum levels. Thus, the rich districts are able to attract the teachers with the best education and the most experience. To complete the circle, this then means, given the state standards, that the rich districts receive more from the Foundation Program for professional salaries than do poor districts. A portion of Professor Berke's study vividly illustrates the impact of the State's standards on districts of varying wealth. See Appendix III, post, p. 136.

^32. In 1967—1968, Alamo Heights School District had $49,478 in taxable property per pupil. See Berke Affidavit, Table VII, App. 216.

^33. In 1967—1968, Edgewood Independent School District had $5,960 in taxable property per pupil. Ibid.

^34. I fail to understand the relevance for this case of the Court's suggestion that if Alamo Heights School District, which is approximately the same physical size as Edgewood Independent School District but which has only one-fourth as many students, had the same number of students as Edgewood, the former's per-pupil expenditure would be considerably closer to the latter's. Ante, at 13, n. 33. Obviously, this is true, but it does not alter the simple fact that Edgewood does have four times as many students but not four times as much taxable property wealth. From the perspective of Edgewood's school children then—the perspective that ultimately counts here—Edgewood is clearly a much poorer district than Alamo Heights. The question here is not whether districts have equal taxable property wealth in absolute terms, but whether districts have differing taxable wealth given their respective school-age populations.

^35. In the face of these gross disparities in treatment which experience with the Texas financing scheme has revealed, I cannot accept the Court's suggestion that we are dealing here with a remedial scheme to which we should accord substantial deference because of its accomplishments rather than criticize it for its failures. Ante, at 38—39. Moreover, Texas' financing scheme is hardly remedial legislation of the type for which we have previously shown substantial tolerance. Such legislation may in fact extend the vote to 'persons who otherwise would be denied it by state law,' Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S.Ct. 1717, 1727, 16 L.Ed.2d 828 (1966), or it may eliminate the evils of the private bail bondsman, Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971). But those are instances in which a legislative body has sought to remedy problems for which it cannot be said to have been directly responsible. By contrast, public education is the function of the State in Texas, and the responsibility for any defect in the financing scheme must ultimately rest with the State. It is the State's own scheme which has caused the funding problem, and, thus viewed, that scheme can hardly be deemed remedial.

^36. Cf. Appendix I, post, p. 134.

^37. Brief for Appellants 3.

^38. Thus, in 1967—1968, Edgewood had a total of $248 per pupil in state and local funds compared with a total of $558 per pupil for Alamo Heights. See Berke Affidavit, Table X, App. 219. For 1970—1971, the respective totals were $418 and $913. See Texas Research League, supra, n. 2, at 14.

^39. Not only does the local property tax provide approximately 40% of the funds expended on public education, but it is the only source of funds for such essential aspects of educational financing as the payment of school bonds, see n. 3, supra, and the payment of the district's share of the Local Fund Assignment, as well as for nearly all expenditures above the minimums established by the Foundation School Program.

^40. Compare, e.g., J. Coleman et al., Equality of Educational Opportunity 290—330 (1966); Jencks, The Coleman Report and the Conventional Wisdom, in On Equality of Educational Opportunity 69, 91—104 (F. Mosteller & D. Moynihan eds. 1972), with, e.g., Guthrie, G. Kleindorfer, H. Levin & R. Stout, Schools and inequality 79—90 (1971); Kiesling, Measuring a Local Government Service: A Study of School Districts in New York State, 49 Rev.Econ. & Statistics, 356 (1967).

^41. Compare Berke Answers to Interrogatories 10 ('Dollar expenditures are probably the best way of measuring the quality of education afforded students . . .'), with Graham Deposition 39 ('(I)t is not just necessarily the money, no. It is how wisely you spend it'). It warrants noting that even appellants' witness, Mr. Graham, qualified the importance of money only by the requirement of wise expenditure. Quite obviously, a district which is property poor is powerless to match the education provided by a proterty-rich district, assuming each district allocates its funds with equal wisdom.

^42. See Brief of amici curiae, inter alia, San Marino Unified School District; Beverly Hills Unified School District; Brief of amici curiae, inter alia, Bloomfield Hills, Michigan, School District; Dearborn City, Michigan School District; Grosse Pointe, Michigan, Public School System.

^43. Answers to Plaintiffs' Interrogatories, App. 115.

^44. Ibid. Moreover, during the same period, 37.17% of the teachers in Alamo Heights had advanced degrees, while only 14.98% of Edgewood's faculty had such degrees. See id., at 116.

^45. Id., at 117.

^46. Id., at 118.

^47. In the 1967—1968 school year, Edgewood had 22,862 students and 864 teachers, a ratio of 26.5 to 1. See id., at 110, 114. In Alamo Heights, for the same school year, there were 5,432 students and 265 teachers for a ratio of 20.5 to 1. Ibid.

^48. Reply Brief for Appellants 17. See also, id., at 5, 15 16.

^49. Indeed, even apart from the differential treatment inherent in the local property tax, the significant interdistrict disparties in state aid received under the Minimum Foundation School Program would seem to raise substantial equal protection questions.

^50. I find particularly strong intimations of such a view in the majority's efforts to denigrate the constitutional significance of children in property-poor districts 'receiving a poorer quality education than that available to children in districts having more assessable wealth' with the assertion 'that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.' Ante, at 23, 24. The Court, to be sure, restricts its remark to 'wealth' discrimination. But the logical basis for such a restriction is not explained by the Court, nor is it otherwise apparent, see infra, at 117—120 and n. 77.

^51. See Answers to Interrogatories by Dr. Joel S. Berke, Ans. 17, p. 9; Ans. 48—51, pp. 22—24; Ans. 88—89, pp. 41—42; Deposition of Dr. Daniel C. Morgan, Jr., at 52—55; Affidavit of Dr. Daniel C. Morgan, Jr., App. 242—243.

^52. It is true that in two previous cases this Court has summarily affirmed district court dismissals of constitutional attacks upon other state educational financing schemes. See McInnis v. Shapiro, 293 F.Supp. 327 (N.D.Ill.1968), aff'd per curiam, sub nom. McInnis v. Ogilvie, 394 U.S. 322, 89 S.Ct. 1197, 22 L.Ed.2d 308 (1969); Burruss v. Wilkerson, 310 F.Supp. 572 (W.D.Va.1969), aff'd per curiam, 397 U.S. 44, 90 S.Ct. 812, 25 L.Ed.2d 37 (1970). But those decisions cannot be considered dispositive of this action, for the thrust of those suits differed materially from that of the present case. In McInnis, the plaintiffs asserted that 'only a financing system which apportions public funds according to the educational needs of the students satisfies the Fourteenth Amendment.' 293 F.Supp., at 331. The District Court concluded that '(1) the Fourteenth Amendment does not require that public school expenditures be made only on the basis of pupils' educational needs, and (2) the lack of judicially manageable standards makes this controversy nonjusticiable.' Id., at 329. The Burruss District Court dismissed that suit essentially in reliance on McInnis which it found to be 'scarcely distinguishable.' 310 F.Supp. at 574. This suit involves no effort to obtain an allocation of school funds that considers only educational need. The District Court rules only that the State must remedy the discrimination resulting from the distribution of taxable local district wealth which has heretofore prevented many districts from truly exercising local fiscal control. Furthermore, the limited holding of the District Court presents none of the problems of judicial management which would exist if the federal courts were to attempt to ensure the distribution of educational funds solely on the basis of educational need, see infra, at 130 132.

^53. Tex.Const., Art. 7, § 1.

^54. Problems of remedy may be another matter. If provision of the relief sought in a particular case required identification of each member of the affected class, as in the case of monetary relief, the need for clarity in defining the class is apparent. But this involves the procedural problems inherent in class action litigation, not the character of the elements essential to equal protection analysis. We are concerned here only with the latter. Moreover, it is evident that in cases such as this, provision of appropriate relief, which takes the injunctive form, is not a serious problem since it is enough to direct the action of appropriate officials. Cf. Potts v. Flax, 313 F.2d 284, 288—290 (CA5 1963).

^55. I assume the Court would lodge the same criticism against the validity of the finding of a correlation between poor districts and racial minorities.

^56. The Court rejects the District Court's finding of a correlation between poor people and poor districts with the assertion that 'there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts' in Texas. Ante, at 23. In support of its conclusion the Court offers absolutely no data—which it cannot on this record concerning the distribution of poor people in Texas to refute the data introduced below by appellees; it relies instead on a recent law review note concerned solely with the State of Connecticut, Note, A Statistical Analysis of the School Finance Decisions: On Winning Battles and Losing Wars, 81 Yale L.J. 1303 (1972). Common sense suggests that the basis for drawing a demographic conclusion with respect to a geographically large, urban-rural, industrial-agricultural State such as Texas from a geographically small, densely populated, highly industrialized State such an Connecticut is doubtful at best.

Furthermore, the article upon which the Court relies to discredit the statistical procedures employed by Professor Berke to establish the correlation between poor people and poor districts, see n. 11, supra, based its criticism primarily on the fact that only four of the 110 districts studied were in the lowest of the five categories, which were determined by relative taxable property per pupil, and most districts clustered in the middle three groups. See Goldstein, Interdistrict Inequalities in School Financing: A Critical Analysis of Serrano v. Priest and its Progeny, 120 U.Pa.L.Rev. 504, 524 n. 67 (1972). See also ante, at 26—27. But the Court fails to note that the four poorest districts in the sample had over 50,000 students which constituted 10% of the students in the entire sample. It appears, moreover, that even when the richest and the poorest categories are enlarged to include in each category 20% of the students in the sample, the correlation between district and individual wealth holds true. See Brief for the Governors of Minnesota, Maine, South Dakota, Wisconsin, and Michigan as amici curiae 17 n. 21.

Finally, it cannot be ignored that the data introduced by appellees went unchallenged in the District Court. The majority's willingness to permit appellants to litigate the correctness of those data for the first time before this tribunal—where effective response by appellees is impossible—is both unfair and judicially unsound.

^57. Third Amended Complaint App. 23. Consistent with this theory, appellees purported to represent, among others, a class composed of 'all . . . school children in independent school districts . . . who . . . have been deprived of the equal protection of the law under the Fourteenth Amendment with regard to public school education because of the low value of the property lying within the independent school districts in which they reside.' Id., at 15.

^58. The degree of judicial scrutiny that this particular classification demands is a distinct issue which I consider in Part II, C, infra.

^59. Indeed, the Court's theory would render the established concept of fundamental interests in the context of equal protection analysis superfluous, for the substantive constitutional right itself requires that this Court strictly scrutinize any asserted state interest for restricting or denying access to any particular guaranteed right, see, e.g., United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968); Cox v. Louisiana, 379 U.S. 536, 545—551, 85 S.Ct. 453, 459—463, 13 L.Ed.2d 471 (1965).

^60. It is interesting that in its effort to reconcile the state voting rights cases with its theory of fundamentality the majority can muster nothing more than the contention that '(t)he constitutional underpinnings of the right to equal treatment in the voting process can no longer be doubted . . ..' Ante, at 34 n. 74 (emphasis added). If, by this, the Court intends to recognize a substantive constitutional 'right to equal treatment in the voting process' independent of the Equal Protection Clause, the source of such a right is certainly a mystery to me.

^61. It is true that Griffin and Douglas also involved discrimination against indigents, that is, wealth discrimination. But, as the majority points out, ante, at 28—29, the Court has never deemed wealth discrimination alone to be sufficient to require strict judicial scrutiny; rather, such review of wealth classifications has been applied only where the discrimination affects an important individual interest, see, e.g., Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). Thus, I believe Griffin and Douglas can only be understood as premised on a recognition of the fundamental importance of the criminal appellate process.

^62. See, e.g., Duncan v. Louisiana, 391 U.S., 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (right to jury trial); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (right to compulsory process); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (right to confront one's accusers).

^63. See, e.g., McLaughlin v. Florida, 379 U.S. 184, 191—192, 85 S.Ct. 283, 287—289, 13 L.Ed.2d 222 (1964); Loving v. Virginia, 388 U.S. 1, 9, 87 S.Ct. 1817, 1822, 18 L.Ed.2d 1010 (1967).

^64. See Oyama v. California, 332 U.S. 633, 644—646, 68 S.Ct. 269, 274—275, 92 L.Ed. 249 (1948); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944).

^65. See Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971).

^66. The Court noted that the challenged 'provision strips from indigent defendants the array of protective exemptions Kansas has erected for other civil judgment debtors, including restrictions on the amount of disposable earnings subject to garnishment, protection of the debtor from wage garnishment at times of severe personal or family sickness, and exemption from attachment and execution on a debtor's personal clothing, books and tools of trade.' 407 U.S., at 135, 92 S.Ct., at 2031.

^67. See generally Gunther, The Supreme Court, 1971 Term, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972).

^68. See Brief of the National Education Association et al. as amici curiae App. A. All 48 of the 50 States which mandate public education also have compulsory-attendance laws which require school attendance for eight years or more. Id., at 20—21.

^69. Prior to this Court's decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), every State had a constitutional provision directing the establishment of a system of public schools. But after Brown, South Carolina repealed its constitutional provision, and Mississippi made its constitutional provision discretionary with the state legislature.

^70. Developments in the Law—Equal Protection, 82 Harv.L.Rev. 1065, 1129 (1969).

^71. The President's Commission on School Finance, Schools, People, Money: The Need for Educational Reform 11 (1972), concluded that '(l)iterally, we cannot survive as a nation or as individuals without (education).' It further observed that:

'(I)n a democratic society, public understanding of public issues is necessary for public support. Schools generally include in their courses of instruction a wide variety of subjects related to the history, structure and principles of American government at all levels. In so doing, schools provide students with a background of knowledge which is deemed an absolute necessity for responsible citizenship.' Id., at 13—14.

^72. See J. Guthrie, G. Kleindorfer, H. Levin, & R. Stout, Schools and Inequality 103—105 (1971); R. Hess & J. Torney, The Development of Political Attitudes in Children 217—218 (1967); Campbell, The Passive Citizen, in 6 Acta Sociologica, Nos. 1—2, p. 9, at 20—21 (1962).

That education is the dominant factor in influencing political participation and awareness is sufficient, I believe, to dispose of the Court's suggestion that, in all events, there is no indication that Texas is not providing all of its children with a sufficient education to enjoy the right of free speech and to participate fully in the political process. Ante, at 36—37. There is, in short, no limit on the amount of free speech or political participation that the Constitution guarantees. Moreover, it should be obvious that the political process, like most other aspects of social intercourse, is to some degree competitive. It is thus of little benefit to an individual from a property-poor district to have 'enough' education if those around him have more than 'enough.' Cf. Sweatt v. Painter, 339 U.S. 629, 633—634, 70 S.Ct. 848, 849, 850, 94 L.Ed. 1114 (1950).

^73. See United States Department of Commerce, Bureau of the Census, Voting and Registration in the Election of November 1968, Current Population Reports, Series P—20, No. 192, Table 4, p. 17. See also Senate Select Committee on Equal Educational Opportunity, 92d Cong., 2d Sess., Levin, The Costs to the Nation of Inadequate Education 46—47 (Comm.Print 1972).

^74. I believe that the close nexus between education and our established constitutional values with respect to freedom of speech and participation in the political process makes this a different case from our prior decisions concerning discrimination affecting public welfare, see, e.g., Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), or housing, see, e.g., Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). There can be no question that, as the majority suggests, constitutional rights may be less meaningful for someone without enough to eat or without decent housing. Ante, at 37. But the crucial difference lies in the closeness of the relationship. Whatever the severity of the impact of insufficient food or inadequate housing on a person's life, they have never been considered to bear the same direct and immediate relationship to constitutional concerns for free speech and for our political processes as education has long been recognized to bear. Perhaps, the best evidence of this fact is the unique status which has been accorded public education as the single public service nearly unanimously guaranteed in the constitutions of our States, see supra, at 111—112 and n. 68. Education, in terms of constitutional values, is much more analogous in my judgment, to the right to vote in state elections than to public welfare or public housing. Indeed, it is not without significance that we have long recognized education as an essential step in providing the disadvantaged with the tools necessary to achieve economic self-sufficiency.

^75. The majority's reliance on this Court's traditional deference to legislative bodies in matters of taxation falls wide of the mark in the context of this particular case. See ante, at 40—41. The decisions on which the Court relies were simply taxpayer suits challenging the constitutionality of a tax burden in the face of exemptions or differential taxation afforded to others. See, e.g., Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959); Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590 (1940); Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245 (1937); Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 10 S.Ct. 533, 33 L.Ed. 892 (1890). There is no question that, from the perspective of the taxpayer, the Equal Protection Clause 'imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to reasonable schemes of state taxation. The State may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products.' Allied Stores of Ohio, Inc. v. Bowers, supra, 358 U.S., at 526—527, 79 S.Ct., at 440—441. But in this case we are presented with a claim of discrimination of an entirely different nature—a claim that the revenue-producing mechanism directly discriminates against the interests of some of the intended beneficiaries; and, in contrast to the taxpayer suits, the interest adversely affected is of substantial constitutional and societal importance. Hence, a different standard of equal protection review than has been employed in the taxpayer suits is appropriate here. It is true that affirmance of the District Court decision would to some extent intrude upon the State's taxing power insofar as it would be necessary for the State to at least equalize taxable district wealth. But contrary to the suggestions of the majority, affirmance would not impose a strait jacket upon the revenue-raising powers of the State, and would certainly not spell the end of the local property tax. See infra, at 1347.

^76. This does not mean that the Court has demanded precise equality in the treatment of the indigent and the person of means in the criminal process. We have never suggested, for instance, that the Equal Protection Clause requires the best lawyer money can buy for the indigent. We are hardly equipped with the objective standards which such a judgment would require. But we have pursued the goal of substantial equality of treatment in the face of clear disparities in the nature of the appellate process afforded rich versus poor. See, e.g., Draper v. Washington, 372 U.S. 487, 495—496, 83 S.Ct. 774, 778—779, 9 L.Ed.2d 899 (1963); cf. Coppedge v. United States, 369 U.S. 438, 447, 82 S.Ct. 917, 922, 8 L.Ed.2d 21 (1962).

^77. Even if I put side the Court's misreading of Griffin and Douglas, the Court fails to offer any reasoned constitutional basis for restricting cases involving wealth discrimination to instances in which there is an absolute deprivation of the interest affected. As I have already discussed, see supra at 88 89, the Equal Protection Clause guarantees equality of treatment of those persons who are similarly situated; it does not merely bar some form of excessive discrimination between such persons. Outside the context of wealth discrimination, the Court's reapportionment decisions clearly indicate that relative discrimination is within the purview of the Equal Protection Clause. Thus, in Reynolds v. Sims, 377 U.S. 533, 562—563, 84 S.Ct. 1362, 1382, 12 L.Ed.2d 506 (1964), the Court recognized:

'It would appear extraordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State's voters could vote two, five, or 10 times for their legislative representatives, while voters living elsewhere could vote only once. . . . Of course, the effect of state legislative districting schemes which give the same number of representatives to unequal numbers of constituents is identical. Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there. . . . Their right to vote is simply not the same right to vote as that of those living in a favored part of the State. . . . One must be ever aware that the Constitution forbids 'sophisticated as well as simple-minded modes of discrimination." See also Gray v. Sanders, 372 U.S. 368, 380 381, 83 S.Ct. 801, 808—809, 9 L.Ed.2d 821 (1963). The Court gives no explanation why a case involving wealth discrimination should be treated any differently.

^78. But cf. Bullock v. Carter, 405 U.S. 134, 144, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972), where prospective candidates' threatended exclusion from a primary ballot because of their inability to pay a filing fee was seen as discrimination against both the impecunious candidates and the 'less affluent segment of the community' that supported such candidates but was also too poor as a group to contribute enough for the filing fees.

^79. But cf. M. Harrington, The Other America 13—17 (Penguin ed. 1963).

^80. See E. Banfield, The Unheavenly City 63, 75—76 (1970); cf. R. Lynd & H. Lynd, Middletown in Transition 450 (1937).

^81. Cf. City of New York v. Miln, 11 Pet. 102, 142, 9 L.Ed. 648 (1837).

^82. Theoretically, at least, it may provide a mechanism for implementing Texas' asserted interest in local educational control, see infra, at 126.

^83. True, a family may move to escape a property-poor school district, assuming it has the means to do so. But such a view would itself raise a serious constitutional question concerning an impermissible burdening of the right to travel, or, more precisely, the concomitant right to remain where one is. Cf. Shapiro v. Thompson, 394 U.S. 618, 629—631, 89 S.Ct. 1322, 1328 1330, 22 L.Ed.2d 600 (1969).

^84. Indeed, the political difficulties that seriously disadvantaged districts face in securing legislative redress are augmented by the fact that little support is likely to be secured from only mildly disadvantaged districts. Cf. Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963). See also n. 2, supra.

^85. See Tex. Cities, Towns and Villages Code, Civ.Stat.Ann. §§ 1011a—1011j (1963 and Supp.1972—1973). See also, e.g., Skinner v. Reed, 265 S.W.2d 850 (Tex.Civ.App.1954); City of Corpus Christi v. Jones, 144 S.W.2d 388 (Tex.Civ.App.1940).

^86. Serrano v. Priest, 5 Cal.3d, at 603, 96 Cal.Rptr., at 614, 487 P.2d, at 1254. See also Van Dusartz v. Hatfield, 334 F.Supp., at 875—876.

^87. Cf., e.g., Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948).

^88. Tex.Educ.Code Ann. §§ 21.101—21.117. Criminal penalties are provided for failure to teach certain required courses. Id., §§ 4.15—4.16.

^89. Id., §§ 12.11—12.35.

^90. Id., § 12.62.

^91. Id., §§ 13.031—13.046.

^92. Id., § 21.004.

^93. See Appendix II, infra.

^94. See Affidavit of Dr. Jose Cardenas, Superintendent of Schools, edgewood Independent School District, App. 234—238.

^95. See Appendix IV, infra.

^96. My Brother WHITE, in concluding that the Texas financing scheme runs afoul of the Equal Protection Clause, likewise finds on analysis that the means chosen by Texas—local property taxation dependent upon local taxable wealth—is completely unsuited in its present form to the achievement of the asserted goal of providing local fiscal control. Although my Brother WHITE purports to reach this result by application of that lenient standard of mere rationality traditionally applied in the context of commercial interest, it seems to me that the care with which he scrutinizes the practical effectiveness of the present local property tax as a device for affording local fiscal control reflects the application of a more stringent standard of review, a standard which at the least is influenced by the constitutional significance of the process of public education.

^97. See n. 98, infra.

^98. Centralized educational financing is, to be sure, one alternative. On analysis, though, it is clear that even centralized financing would

not deprive local school district of what has been considered to be the essence of local educational control. See Wright v. Council of the City of Emporia, 407 U.S. 451, 477—478, 92 S.Ct. 2196, 2210 2211, 33 L.Ed.2d 51 (Burger, C.J., dissenting). Central financing would leave in local hands the entire gamut of local educational policy-making—teachers, curriculum, school sites, the whole process of allocating resources among alternative educational objectives.

A second possibility is the much-discussed theory of district power equalization put forth by Professors Coons, Clune, and Sugarman in their seminal work, Private Wealth and Public Education 201—242 (1970). Such a scheme would truly reflect a dedication to local fiscal control. Under their system, each school district would receive a fixed amount of revenue per pupil for any particular level of tax effort regardless of the level of local property tax base. Appellants criticize this scheme on the rather extraordinary ground that it would encourage poorer districts to overtax themselves in order to obtain substantial revenues for education. But under the present discriminatory scheme, it is the poor districts that are already taxing themselves at the highest rates, yet are receiving the lowest returns.

District wealth reapportionment is yet another alternative which would accomplish directly essentially what district power equalization would seek to do artificially. Appellants claim that the calculations concerning state property required by such a scheme would be impossible as a practical matter. Yet Yexas is already making far more complex annual calculations—involving not only local property values but also local income and other economic factors—in conjunction with the Local Fund Assignment portion of the Minimum Foundation School Program. See 5 Governor's Committee Report 43—44.

A fourth possibility would be to remove commercial, industrial, and mineral property from local tax rolls, to tax this property on a statewide basis, and to return the resulting revenues to the local districts in a fashion that would compensate for remaining variations in the local tax bases.

None of these particular alternatives are necessarily constitutionally compelled; rather, they indicate the breadth of choice which would remain to the State if the present interdistrict disparities were eliminated.

^99. See n. 98, supra.

^100. Of course, nothing in the Court's decision today should inhibit further review of state educational funding schemes under state constitutional provisions. See Milliken v. Green, 389 Mich. 1, 203 N.W.2d 457 (1972), rehearing granted, Jan. 1973; Robinson v. Cahill, 118 N.J. Super. 223, 287 A.2d 187; 119 N.J.Super. 40, 289 A.2d 569 (1972); cf. Serrano v. Priest, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 (1971).

Based on Table V to affidavit of Joel S. Berke, App. 208, which was prepared on the basis of a sample of 110 selected Texas school districts from data for the 1967-1968 school year.

Based on Table II to affidavit of Joel S. Berke, App. 205, which was prepared on the basis of a sample of 110 selected Texas school districts from data for the 1967-1968 school year.

Based on Table XI to affidavit of Joel S. Berke, App. 220, which was prepared on the basis of a sample of six selected school districts located in Bexar County, Texas, from data for the 1967-1968 school year.

Based on Table IX to affidavit of Joel S. Berke, App. 218, which was prepared on the basis of the 12 school districts located in Bexar County, Texas, from data from the 1967-1968 school year.