Bulluck v. Washington

MacKINNON, Circuit Judge:

Appellants instituted these suits in the United States District Court seeking a declaratory judgment that Section 401(2) of the D.C.Revenue Act of 1968 ¹ was unconstitutional and an injunction against its enforcement. Because they were seeking to enjoin an act of Congress, appellants requested convocation of a three-judge district court.² Holding that the constitutional question presented was insubstantial, a single district judge denied appellants’ request for a three-judge court and granted appellees’ motion to dismiss the complaint.³ This appeal followed and we affirm.

Accepting as true for purposes of this appeal, the factual allegations of the complaint,⁴ it appears that the Parent Teachers’ Association of the Bannock-burn School conceived a plan [hereinafter the “Bannockburn Plan or Plan”] by which school children in the predominently black Meyer Elementary School in the District could be educated in the predominently white Bannockburn School in suburban Maryland. Designed to operate on a voluntary basis, the Plan, in effect, was an invitation to parents of Meyer School students to enroll their children in the Bannockburn School.⁵ Approval for the Plan was sought and received from the Superintendent of Schools for Montgomery County and from the Montgomery County School Board.

On June 2^, 1968, the District of Columbia School Board approved the Plan and agreed to provide the funds necessary for its implementation.⁶ Some time thereafter, Section 401(2) was inserted in the District’s pending revenue bill by the House Committee on the District of Columbia. As enacted,⁷ the Section provides:

Sec. 401. No funds appropriated for the District of Columbia may be used—

(2) for the cost of education (including the cost of transportation) of any individual in an elementary or secondary school located outside the District of Columbia except (A) any handicapped individual for whom education facilities do not exist in the public school system of the District of Columbia and (B) any individual under the care, custody or guardianship of the District of Columbia placed in a foster home or in an institution located outside the District of Columbia.⁸

Appellants claim that this Section violates the Due Process clause of the Fifth Amendment⁹ because it was motivated by the desire of Congress to keep black school children from the District of Columbia out of white Maryland schools, and, alternatively, because its inevitable effect is to thwart racial integration. To these contentions we now turn.¹⁰

I. Scope of Review

Preliminarily, we note two factors concerning this case. First of all, the issue before us is a quite narrow one. Since appellants’ request for a three-judge court was denied, we must reverse if we conclude that the constitutional questions raised are substantial. As the Supreme Court stated in Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794 (1962):

When an application for a statutory three-judge court is addressed to a district court, the court’s inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute.¹¹

To conclude that the constitutional questions are not substantial, we must conclude that they are “obviously without merit” or that their “unsoundness so clearly results from previous decisions of [the Supreme Court] as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.” Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933).

Secondly, appellants do not contend that the District of Columbia government is required to expend funds in support of the Plan.¹² Their sole contention is that the Due Process Clause forbids the District to refuse to expend such funds because of Section 401(2). Thus the issue of whether any substantial constitutional question would be presented by the District government’s refusal to support the Plan financially for any reason other than the existence of Section 401(2) is not present in the case.

II. Congressional Motives

There can be little doubt that a valid exercise of congressional power will not be invalidated because the Congress had invalid motives when it passed the legislation in question. A long line of cases has affirmed and reaffirmed this principle in a variety of contexts.

The reason that courts will not go behind the face of legislation to hold it constitutionally void on such grounds rests on sound practical considerations regarding the nice balance between the judicial and legislative branches of Government. As the Supreme Court stated in United States v. O’Brien, 391 U.S. 367, 383-384, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672 (1968):

Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit of sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress’ purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.

Appellants concede the force of the principles enunciated above and seek to remove this case from their grasp by an examination of the “legislative origin, context and purpose” of Section 401(2). They allege that the provision was inserted in the District’s revenue bill in 1968 “within five days after the Bannockburn Plan was approved by the Montgomery County and District of Columbia School Boards and publically announced.” They further allege that Section 401(2) appears in the context of Section 401(1), an “anti-bussing” provision that D.C.Revenue Act.¹³ Finally, appellants allege that the report which accompanied Section 401(2) to the floor of the House makes it plain that the Section is aimed at eliminating the Bannockburn Plan.¹⁴

The above circumstances, claim appellants, are sufficient to show that the “purpose” of Section 401(2) was to impede racial integration in schools. They further claim that no probing of the “motives” of the Congress is necessary to reach the conclusion they would have us draw from their allegations and that this court may thus look at the relatively objective criteria they have presented to determine whether the purpose of Congress in enacting Section 401(2) was legitimate.

Distinctions between legislative purposes and motives have been recognized in a variety of contexts.¹⁵ The distinction, however, is between what the legislature has actually done and why it has done so, for,

[i]n a legal sense, the object or purpose of legislation is to be determined by its natural and reasonable effect, whatever may have been the motives upon which legislatures acted.¹⁶

Thus, if what the legislature has done is constitutional, the reasons why it has done so are irrelevant.¹⁷

Acceptance of appellants’ arguments concerning the “purpose” of Section 401(2) would require us to resort to circumstantial evidence which tended to show that the Section was not simply a prohibition of extra-territorial expenditures of funds but was a prohibition of integration of the District’s black school children with those of the white suburbs. In other words, we are asked to use such evidence as the basis for a conclusion (1) that Congress did not really care about the expenditure of funds for extra-territorial education but was concerned about integration and (2) that the statute is therefore unconstitutional.

Appellants’ suggested analysis does not change the fact that they are asking us to examine congressional motivations, for we are still asked to hold a statute unconstitutional because of the reason it was enacted. Whether these reasons are denominated “motives” or “purposes,” they cannot provide us with a basis for invalidating an act of Congress valid on its face and in effect. A claim that they can is insubstantial.¹⁸

The Effect of Section -401(2) III.

We turn, then, to an examination of the Section’s effect in an effort to determine whether there is a substantial question that that effect is to deprive appellants of a constitutional right. Still assuming for present purposes the truth of appellants’ allegations, it is clear that the inevitable effect of Section 401(2) is removal of the possibility of the District providing financial support for the Bannockburn Plan¹⁹ from appropriated funds. Clear also is that the Plan was designed to foster integrated education by allowing children in a predominantly (97.7;%) black inner-city school to enroll in a predominantly white school in a foreign state. Finally, it appears that, with two exceptions to be discussed hereinafter, the Bannockburn Plan was the only operating plan which provided for education of District school children outside the District of Columbia. It does not follow, however, that the sum of these parts amounts to a substantial claim of the invidious discrimination prohibited by the Fifth Amendment.

We note, first of all, that appellants have made no allegation that the Section on its face provides for racial discrimination between various groups.²⁰ Nor have they made any allegation that the Section is a sham which, under cover of surface neutrality, permits children of one race but not of another to obtain governmentally-subsidized education outside the District.²¹ Instead, the first of appellants’ two main arguments is that the effect of the Section is to place “a special burden upon District children seeking educational integration.”

In order to demonstrate that such a contention, by itself, does not raise a substantial constitutional question, we turn briefly to fundamentals. At the start of the Court’s opinion in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 5-6, 91 S.Ct. 1267, 1271, 28 L.Ed.2d 554 (1971), Chief Justice Burger made the following observation :

This case and those argued with it arose in states having a long history of maintaining two sets of schools in a single school system deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race. That was what Brown v. Board of Education [, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954),] was all about.

Indeed it was. In Brown, of course, the Court held that school systems racially segregated by law were constitutionally impermissible. It did so because it concluded that

[t]o separate [black children] from [white children] of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.²²

This being the case,

[segregation with the sanction of law . . . has a tendency to [retard] the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial [ly] integrated school system.²³

Based on these conclusions, the Court made its ultimate conclusion:

Separate educational facilities are inherently unequal. Therefore, we hold that plaintiffs and others similarly situated . . . are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.²⁴

To remedy this deprivation, the Court, in Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II), ordered the affected school systems to prepare and implement plans which would integrate their schools.

If this seems a belaboring of the obvious, we do so only to illustrate the processes which led to the Court’s conclusions in Brown and which are implicit, if unstated, in every case involving racial discrimination decided since that time. In brief the processes are these: The Constitution guarantees equal treatment under the law. Forced segregation on the basis of race, both by itself and with its attendant consequences, denies equal treatment under the law. Therefore forced racial segregation is constitutionally intolerable. The basic right, therefore, is equality under the law and the normal remedy for a violation of that right is an injunction removing whatever state action causes the inequality — in racial cases, the laws which provide for segregation by race. So familiar has this method of analysis become — and so surely have lines drawn on the basis of race been found to generate inequality²⁵ — that it is very often unnecessary to articulate the reasons why forced segregation is constitutionally impermissible. One must keep clearly in mind, however, that equality under the law is the basic right and that injunctions against forced segregation by race are a remedy for violation of that right.²⁶

Thus in order to show that burdens on the pursuit of an integrated education are a violation of the Constitution, the party making that contention must be able to show that such burdens are a hindrance to his pursuit of the equality guaranteed him by the Constitution. Necessarily, then, one must face the question of the kind of equality required by the Constitution. The answer seems plain, for the Fourteenth Amendment, and for present purposes, the Fifth ²⁷ speaks in terms of a state’s denial of equal protection to anyone within its jurisdiction. To the extent, then, that a State (here the District of Columbia) provides public education, it is under a duty to do so in even-handed fashion for all who desire to participate in the programs it offers. But the relevant unit of equality, as it were, is, at least in the context of public education, no larger than the State (here the District of Columbia) and no case we have found has ever suggested that concepts of equal protection require one state to provide educational opportunities equivalent to those provided by another.²⁸ The correlative of this proposition is, of course, that an individual who desires to participate in a given educational program has a right to participate in programs equal only to those afforded others by the same system (here the District system).

At most, then — and read, as it must be, in light of Hobson v. Hansen²⁹ — the effect of Section 401(2) is this: The District will provide an educational system in which each student is given educational opportunities precisely equal to those given to every other student in the system.³⁰ It will not provide any students, with two exceptions, with educational opportunities necessarily equal to those which can be found in a school system other than its own. Because of the racial composition of the District, the result of the foregoing is inevitably to place burdens on efforts to seek integrated education.³¹ Nevertheless, since the constitutional unit of equality here is the District itself, we cannot say that the imposition of such burdens raises a substantial claim of a constitutional violation when the education of District children (with two exceptions) is restricted to the District of Columbia.

Appellants’ second argument concerning the effect of Section 401(2) deals with the two exceptions Congress placed in that Section. By virtue of these exceptions, two groups are furnished an extra-territorial education at the expense of the District of Columbia: (1) handicapped children for whom educational facilities are not available in the District and (2) those children in the District’s care and custody (foster children) who already reside in foster homes outside the District.³² Because extra-territorial education is provided for these two classes, but not for the class which seeks racial integration, appellants argue that the latter are denied equal protection of the laws.

Once again, we note that there are no claims that there is any racial discrimination in the operation of either of these two programs, either on the face of the statute or in effect. Nor, again, is there any allegation that the classes of exempted persons are shams. Thus, neither of these exceptions discriminates against children of any race. Finally, there is no allegation that the exempted classes receive better — as opposed to simply extra-territorial — education than do members of the non-exempted class. Again, appellants place primary reliance on the proposition that by exempting the above two classes from the operation of Section 401(2) but not those who seek racial integration, special burdens have been placed on the latter and those burdens are unconstitutional.

It is generally true, of course, that although the District is not obliged to provide any students with an extraterritorial education, it must do so for all equally if it chooses to do so for any.³³ Under the circumstances of this case, however, the District does so equally within the meaning of the Constitution if it has a rational basis for distinguishing between those whom it educates outside the District and those whom it does not.

We say “rational basis” with calculation, for again it is important to note precisely what claims are before us. In a normal case, when a state makes distinctions based on race, it must have a compelling reason for so doing if the distinction is to be valid. Indeed, the reasons must be so compelling that few can be found.³⁴ Thus, normally when a member of a minority seeks access to integrated facilities only the most compelling of reasons permit the state to keep him out. As has been said, this result necessarily follows from the proposition that, in a normal case, distinctions based on race provide an inherently unequal application of the laws. In this case, the relevant constitutional unit of equality is no larger than the District of Columbia and appellants have a constitutional right only to an education equivalent to that received by others whom the District educates. Moreover, they have not alleged that the education they are receiving is not the same as is furnished to all races or is not equal to that being received by all others in the District. In seeking a more fully integrated education in the State of Maryland, therefore, appellants cannot do so in the role of those seeking a remedy for enforced inequality but must do so in the role of those seeking better educational benefits than those available in the District. In this role, they stand on the same footing as those who, for example, might request the District to provide funds to enable them to take part in any other specialized educational programs available in Maryland but not in the District.

Although we recognize the crucial role played by education in our complex society, we think it clear that the decision of the District to support one extra-territorial education program does not mean that only the most compelling of reasons can justify a refusal to support all. Instead, we conclude that where a rational basis is found for a decision to support one program and not another that finding is sufficient to insulate the decision from further judicial scrutiny.³⁵

We find a clear basis for distinguishing between the programs for handicapped and foster children and all others. There are in the District no facilities for properly educating the handicapped whom Section 401(2) exempts and the District’s foster children who live in foster homes outside the District. The Congress could rationally decide that, while the costs of education generally were such as to prohibit expenditure of funds for special educational programs, the special situation in which these two classes of children found themselves warranted the expenditure of funds necessary to provide properly for their education.³⁶ It could also have concluded that desirable as it might be to underwrite other programs, it simply was not financially possible to do so.³⁷ We cannot say that such legislative conclusions would be irrational. We thus conclude that appellants’ attack on Section 401(2) does not present a substantial constitutional question.

If this opinion seems overly long for one in which a conclusion is reached that appellants’ contentions are clearly without merit, we note that its length is due to the complexity of the principles which must govern disposition of the case. Those principles are clear, and extended discussion is required only to show that they govern a very narrow area. State-imposed racial classifications, and state-imposed burdens on the attainment of constitutional rights, remain inherently suspect, if not inherently illegal. But the relevant frame of reference in the field of public education in District of Columbia is no larger than the District itself and it is on that frame of reference on which the District appellants must focus in pursuit of the equality which is rightfully theirs.

We find no racial discrimination in the congressional law which limits the extra-territorial education of children in the District of Columbia to foster children who are already outside the District and to those handicapped children for whom educational facilities do not exist in the public school system of the District of Columbia. In other words, there is just no support in law or logic to the contention that because Congress authorizes the District of Columbia to educate some handicapped and foster children outside the District that Congress is required to go further and authorize a program of general or limited racial integration between schools of the District and the schools of adjacent states.

Affirmed.

1 . Pub.L.No. 90-450, § 401(2), 82 Stat. 615, D.C.Code § 31-1118(2) (Supp. IV 1971).

2 . 28 U.S.C. § 2282 (1970). A recent discussion of three-judge court litigation and pending proposals for reform is contained in Ammerman, Three-Judge Courts: See How They Run, 52 F.R.D. 293 (1971). For a brief discussion of three-judge courts in segregation cases, see Alabama State Teachers Ass’n v. Alabama Public School & College Auth., 393 U.S. 400, 401-403, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969) (Harlan, J., dissenting).

3 . The trial court dismissed the complaint on the grounds that it failed to state a claim on which relief could be granted and that the action was not “ripe.” Presumably, the court felt that the case was not ripe because Section 401(2) had not yet caused any injury. See note 8, infra. AVhile we do not agree with the court’s conclusions concerning ripeness, we see no need for discussion of the matter since we do agree with the alternative conclusion that no claim is presented on which relief can be granted. See Bradshaw v. United States, 143 U.S.App.D.C. 344, 356, 443 F.2d 759, 771 (1971).

4 . Jenkins v. McKeithen, 395 U.S. 411, 421-422, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); United States v. New Wrinkle, Inc., 342 U.S. 371, 376, 72 S.Ct. 350, 96 L.Ed. 417 (1952). See generally 2A J. Moore, Federal Practice ¶ 12.08 (1968).

5 . The Plan operates in only one direction. It provides for District children to be educated in Maryland but no Maryland children are to be educated in the District. In this and other respects, the Plan is allegedly similar to others currently in operation throughout the country, among them METCO (Boston) and Project Concern (Hartford and New Haven), except that here the plan seeks to embrace a foreign state.

6 . Among the costs which the District agreed to pay were apparently included those for tuition and transportation. 115 Cong.Rec. 23139 (1969) (Remarks of Rep. Fuqua).

7 . 114 Cong.Rec. 24706, 24761 (1968).

8 . Since all money in the District’s regular school budget comes from appropriated funds, see generally Bradshaw v. United States, 143 U.S.App.D.C. 344, 350, n. 13, 443 F.2d 759, 765 n. 13 (1971), Section 401(2) precludes the District from using any of its regular funds to support the Plan. However, Impact Aid Funds, 20 U.S.O. § 236 et seq. (1970), have been used to implement the Plan to some extent.

9 . The Fourteenth Amendment is not applicable to the District of Columbia. However, concepts of equal protection are inherent in the due process of law guaranteed to citizens of the District by the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Washington v. United States, 130 U.S.App.D.C. 374, 401 F.2d 915 (1968); United Federation of Postal Clerks v. Blount, 325 F.Supp. 879, 883 (D.D.C.1971) (three-judge court); Hobson v. Hansen, 269 F.Supp. 401, 492-493 (D.D.C.1967). In the context of the case before us, we treat the educational rights guaranteed to citizens of a state by the Equal Protection Clause of the Fourteenth Amendment as precisely equivalent to those guaranteed citizens of the District by the Due Process Clause of the Fifth.

10 . We do not believe that this case was rendered moot by the District School Board’s termination of the Bannockburn program shortly after the opening of the present school year, while this appeal was sub judiee. See Bulluck v. Washington, Nos. 24862-3, 147 U.S.App.D.C. 53, 452 F.2d 1385 (1971) (Motion for Temporary Injunctive Relief). The statute still exists and the proponents of the Bannockburn plan continue to advocate its reinstatement. We thus have before us a concrete factual situation in which appellants have a continuing interest and we need not await a direct violation of the statute before passing upon its validity. Lee v. Nyquist, 318 F.Supp. 710, 713-715 (W.D.N.Y.1970), aff’d, 402 U.S. 935, 91 S.Ct. 1618, 29 L.Ed.2d 105 (1971); Antonelli v. Hammond, 308 F.Supp. 1329, 1334 (D.Mass.1970). And see Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967).

11 . We consider no questions other than the substantiality of the constitutional claim although others were briefed by the parties. See, e. g., note 3, supra. One group of plaintiffs consists of Maryland citizens whose children attend Bannockburn School. Had we reached a different result on the underlying merits of the constitutional claim, the standing of the Maryland parents to maintain this action would itself present a question for the three-judge court. See Flast v. Gardner, 267 F.Supp. 351, 352 (S.D.N.Y.), dismissed, 271 F.Supp. 1 (S.D.N.Y.1967) (three-judge court), rev’d sub nom. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

12 . They do, however, state that the District is under a compulsion to utilize suburban schools in desegregating its own. Brief for appellants at 18, 22 n. 1, 34. Their belief in this regard stems from the following statement in Hobson v. Hansen, 269 F.Supp. 401, 515-516 (D.D.C.1967), where the court, in ordering the District to prepare a comprehensive school desegregation plan, stated:

The plan, too, should anticipate the possibility that integration may be accomplished through cooperation with school districts in the metropolitan suburbs.

A claim that this statement amounts to an order to utilize the suburbs in desegregating the District’s schools and that the District is not complying with that order should, of course, be directed in the first instance to the court which issued the order. Consequently, the question of whether the district is under such a compulsion plays no further role in our discussion of this case.

13 . D.C. Revenue Act of 1968, Pub.L.No. 90-450. § 401(1), 82 Stat. 615, D.C. Code § 31-1118(1) (Supp. IV 1971) provides :

No funds appropriated for the government of the District of Columbia maybe used—

(1) to provide transportation for students enrolled in the ímblic schools of the District of Columbia if the transportation is provided solely to change the racial balance in any public school in the District of Columbia.

A similar provision first appeared in the D.C. Revenue Act of 1967, Pub.L.No. 90-135, § 16, 81 Stat. 441.

14 . H.R.Rep.No. 1609, 90th Cong., 2d Sess. 5 (1968). The Senate thought that whether sums should be expended by the District in support of the Plan was a matter for the local officials to decide. 114 Cong.Rec. 23517 (1968).

15 . See, e. g., Palmer v. Thompson, 403 U.S. 217, 234-236, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971) (Douglas, J., dissenting); Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L. Rev. 526, 538 — 44 (1947). Sometimes, however, the two are confused. E. g., Note, Symbolic Conduct, 68 Colum.L.Rev. 1091, 1123 n. 175 (1968).

16 . New York State v. Roberts, 171 U.S. 658, 681, 19 S.Ct. 70, 43 L.Ed. 323 (1898) (Harlan, J., dissenting); accord, Palmer v. Thompson, supra note 15, 403 U.S. at 224-226, 91 S.Ct. 1940. Indeed, in United States v. O’Brien, 391 U.S. 367, 383, 384-385, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), the Court equated “purpose,” as used by O’Brien, and “motive,” and then said that both were irrelevant to the statute’s constitutionality. What was relevant was the inevitable effect of the statute. Analysis of constitutional problems in terms of O’Brien does much to remove the difficulty which beclouds the area.

17 . In narrow classes of cases, “purposes” may be said to be relevant to a statute’s validity. One example was mentioned by the Court in O’Brien, supra, 391 U.S. at 383 n. 30, 88 S.Ct. 1673, 20 L.Ed.2d 672. One other example also might be noted. If by first looking to the effect of a statute, a court finds that a burden is placed on the exercises of a protected right, it may then look to state interests advanced by the statute to determine whether they are sufficient to permit imposition of the burden. See, e. g., Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965); cf. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). To the extent that the “interests” advanced by the statute are equated with the “purposes” for its enactment, the latter may become relevant.

18 . Even such legislative history as does exist is not entirely convincing on the question of the existence or nonexistence of the statute’s racial purposes. The provision that was to become Section 401 (2) first appeared as a committee amendment to the District’s pending revenue bill. 114 Cong.Ree. 19439 (1968). Its insertion was triggered by the Bannock-burn Plan. H.R.Rep.No. 1609, 90th Cong., 2d Sess. (1968). One legislator, Rep. Broyhill, said that the Plan was an “outrageous misspending of the taxpayer’s [sic] money.” 114 Cong.Ree. 19974 (1968). Another, Rep. Eraser, moved to strike it out of the revenue bill on the grounds (1) that whether or not to support the Plan financially should be a local matter and (2) that as drafted, the Section would eliminate support for foster children. Id. at 11984. The motion was defeated 64-48, id. 19985, and the provision remained in the bill when it passed the House.’ Id. at 19986. The Senate deleted the provision for the same reasons urged by Rep. Eraser. S.Rep.No. 1448, 90th Cong., 2d Sess. 18 (1968). After brief debate, the bill as amended passed the Senate without discussion of the deletion of Section 401(2). 114 Cong. Rec. 23519 (1968). The Senate-House Conferees reinserted Section 401(2) after rewriting it to exempt foster children. H.R.Conf.Rep.No. 1829, 90th Cong., 2d Sess. 7-8 (1968). As amended by the Conferees, the bill passed without debate in the House, 114 Cong.Ree. 24761 (1968), and in the Senate, id. at 24706. The following year, a motion was again made to remove the Section from the District’s revenue bill. One who voiced opposition to removal was concerned about the cost of the Bannockburn Plan, and another was concerned about the possibility that similar plans might become mandatory. The motion was defeated 83-74. 115 Cong.Ree. 23139-40 (1969). In light of this history, a contention that the dominant “motive” behind Section 401(2) was a racial one hangs by slender threads.

19 . Other than through its use of Impact Aid funds. See note 8, supra.

20 . Compare, e. g., 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); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

21 . Compare, e. g., Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Meredith v. Fair, 298 F.2d 696 (5th Cir.), cert. denied, 371 U.S. 828, 83 S.Ct. 49, 9 L.Ed.2d 66 (1962).

22 . 347 U.S. at 494, 74 S.Ct. at 691.

23 . Id. The Court also approved a finding of the lower court that segregation without the force of law had a detrimental effect on black children. Id. See generally note 25, infra.

24 . Id. at 495, 74 S.Ct. at 692 (emphasis added).

25 . Indeed, “where it is possible to identify a white school or a ‘Negro’ school simply by reference to the racial composition of teachers and staff a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18, 91 S.Ct. 1267, 1277, 28 L.Ed.2d 554 (1971).

26 . Winston-Salem/Forsyth County Board of Educ. v. Scott, 404 U.S. 1221, at 1229, 92 S.Ct. 1236, at p. 1241, 31 L.Ed.2d 441 (decided August 11, 1971) (Burger, Circuit Justice); Swann v. CharlotteMecklenburg Board of Educ., 402 U.S. 1, 22, 28, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Green v. County School Board, 391 U.S. 430, 437, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).

27 . See note 9, supra.

28 . Relevant units, of course, may be smaller than statewide. Cf. Rainey v. Board of Educ., 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968). Compare Lee v. Nyquist, 318 F.Supp. 710 (W.D.N.Y.1970) (three-judge court), aff’d, 402 U.S. 935, 91 S.Ct. 1618, 29 L.Ed.2d 105 (1971). We are dealing in this ease, however, with only a single district encompassing the entire District of Columbia. Hobson v. Hansen, 327 F.Supp. 844, 860 n. 27 (D.D.C.1971).

29 . 269 F.Supp. 401 (D.D.C.1967), aff’d sub nom. Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969, en banc), provided that the District refrain from discriminating between students in its schools on the basis of race or economic status. Hobson v. Hansen, 320 F.Supp. 409 (D.D.C.1970) required that the District reconsider certain lines it had drawn to divide the City into school districts. Hobson v. Hansen, 320 F.Supp. 720 (D.D.C.1970) dealt with a similar problem and enjoined the drawing of certain lines. Hobson v. Hansen, 327 F.Supp. 844 (D.D.C.1971) ordered the equalization of per pupil expenditures in the District’s schools.

30 . There is no allegation that the District is unable to comply with the remedial measures mandated by Hobson v. Hansen, supra note 29. Nor is there any allegation that it is unwilling to do so. Whether, in either ease, the District could be compelled to expend money to provide such remedies by sending its school children to schools in adjoining states is a question not involved in the case before us. See generally Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 (1938) for some of the considerations which might be applicable to such a case.

31 . Black students comprise some 95% of all students in the District’s public school system. Hobson v. Hansen, 327 F.Supp. 844, 861-862 n. 28(3) (D.D.C.1971).

32 . The precise number of the latter group is not clear. The Senate report which accompanied the original Section 401(2) to the floor stated that there were “hundreds.” S.Rep. No. 1448, 90th Cong., 2d Sess. 18 (1968).

33 . Compare, e. g., Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971) with Watson v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963). See generally Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956).

34 . At least theoretically, however, they do exist. See generally Baker v. City of St. Petersburg, 400 F.2d 294 (5th Cir. 1968); Comment, Kace as a Basis for Police Duty Assignments, 49 B.U.L.Rev. 590 (1969).

35 . See Dandridge v. Williams, 397 U.S. 471, 483-487, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); cf. Hobson v. Hansen, 269 F.Supp. 401, 497 (D.D.C.1967).

36 . Cf. Hobson v. Hansen, 327 F.Supp. 864 (D.D.C.1971).

37 . We note that one member of the House of Representatives stated that the per pupil expenditure required to finance the Bannockburn Plan was “approximately $1,597,” and that this was roughly double the $797 per pupil being expended in the District. 115 Cong.Rec. 23139 (1969). Another member challenged the conclusions to be drawn from this assertion, saying, inter alia, that foundation grants would make the Bannockburn Plan about as costly as providing education in the District. Id. In the court below, it was asserted that the actual cost to the District, see note 8, supra, was about $50,000 or $2,000 per pupil participating in the Bannockburn Plan. We note these assertions simply as additional support for our conclusion that Congress could have rationally determined that the Bannockburn Plan, as well as other extra-territorial plans for educating District students, were simply too expensive to allow.