Hadley v. Junior College District of Metropolitan Kansas City/Dissent Harlan
Mr. Justice HARLAN, with whom THE CHIEF JUSTICE and Mr. Justice STEWART join, dissenting.
Today's decision demonstrates, to a degree that no other case has, the pervasiveness of the federal judicial intrusion into state electoral processes that was unleashed by the 'one man, one vote' rule of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).
Reynolds established that rule for the apportionment of state legislatures, thereby denying States the right to take into account in the structuring of their legislatures any historical, geographical, economic, or social considerations, or any of the many other practical and subtle factors that have always been recognized as playing a legitimate part in the practice of politics.
Four years later, in Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), the 'one man, one vote' rule was extended to many kinds of local governmental units, thereby affecting to an unknown extent the organizational integrity of some 80,000 such units throughout the country, and constricting the States in the use of the electoral process in the establishment of new ones.
And today, the Court holds the 'one man, one vote' rule applicable to the various boards of trustees of Missouri's junior college system, and the case forebodes, if indeed it does not decide, that the rule is to be applied to every elective public body, no matter what its nature.
While I deem myself bound by Reynolds and Avery-despite my continued disagreement with them as constitutional holdings (see my dissenting opinions in Reynolds, 377 U.S., at 589, 84 S.Ct. at 1395, and in Avery, 390 U.S., at 486, 88 S.Ct. at 1121)-I do not think that either of these cases, or any other in this Court, justifies the present decision. I therefore dissent, taking off from Avery in what is about to be said.
* In Avery the Court acknowledged that 'the states' varied, pragmatic approach in establishing governments' has produced 'a staggering number' of local governmental units. The Court noted that, 'while special-purpose organizations abound * * *, virtually every American lives within what he and his neighbors regard as a unit of local government with general responsibility and power for local affairs.' The Midland County Commissioners Court, the body whose composition was challenged in Avery, was found to possess a broad range of powers that made it 'representative of most of the general governing bodies of American cities, counties, towns, and villages,' and the Court was at pains to limit its holding to such general bodies. 390 U.S., at 482-485, 88 S.Ct. at 1119-1120. Today the Court discards that limitation, stating that 'there is no discernible, valid reason why constitutional distinctions should be drawn on the basis of the purpose of the election.' Ante, at 54-55. I believe, to the contrary, that the need to preserve flexibility in the design of local governmental units that serve specialized functions and that must meet particular local conditions, furnishes a powerful reason to refuse to extend the Avery ruling beyond its original limits. If local units having general governmental powers are to be considered, like state legislatures, as having a substantial identity of function that justifies imposing on them a uniformity of elective structure, it is clear that specialized local entities are characterized by precisely the opposite of such identity. From irrigation districts to air pollution control agencies to school districts, such units vary in the magnitude of their impact upon various constituencies and in the manner in which the benefits and burdens of their operations interact with other elements of the local political and economic picture. Today's ruling will forbid these agencies from adopting electoral mechanisms that take these variations into account.
In my opinion, this ruling imposes an arbitrary limitation on the ways in which local agencies may be constituted. The Court concedes that the States may use means other than apportionment 'to insure that legitimate political goals of representation are achieved.' For example, officials elected at large may be required to be residents of particular areas that do not contain equal numbers of people, Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967); the right to vote may be denied outright to persons whose interest in the function performed by the agency is nonexistent or slight, cf. Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); or the State may in many instances abandon the elective process altogether and allow members of an official body to be appointed, without any regard for the equal-population principle, Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967). Since the Court recognizes the States' need for flexibility in structing local units, I am unable to see any basis for its selectively denying to them one of the means to achieve such flexibility. If, as the Court speculates, other means will prove as effective as apportionment in the adaptation of local agencies to meet specific needs, presumably those other means will also enable the States just as effectively to accomplish whatever evils the Court thinks it is preventing by today's decision. The Court has not shown that, under the supervision of state legislatures that are apportioned according to Reynolds, flexible methods of apportionment of local official bodies carry any greater danger of abuse than these other means of achieving the desirable goal of specialization. The Court's imposition of this arbitrary limitation on the States can be justified only in the name of mathematical nicety.
I do not believe that, even after Avery, such a result is compelled by the absence of 'judicially manageable standards' for the 'difficult job of distinguishing between various elections.' Ante, at 55. Before today, the Court's rule was that 'one man, one vote' applied only to local bodies having 'general governmental powers over the entire geographic area served by the body.' 390 U.S., at 485, 88 S.Ct., at 1120. The Court in Avery professed no temerity about concluding that the Midland County Commissioners Court was such a body. The Court's mere recitation of the powers of that entity, ante, at 53-54, n. 6, suffices to establish that conclusion. At the same time, it cannot be argued seriously that the Junior College District of Metropolitan Kansas City is the general governing body for the people of its area. The mere fact that the trustees can, with restrictions, levy taxes, issue bonds, and condemn property for school purposes does not detract from the crucial consideration that the sole purpose for which the district exists is the operation of a junior college. If the Court adhered to the Avery line, marginal cases would of course arise in which the courts would face difficulty in determining whether a particular entity exercised general governmental powers, but such a determination would be no different in kind from many other matters of degree upon which courts must continually pass. The importance of ensuring flexibility in the organization of specialized units of government, and the uncertainty whether the rule announced today will further any important countervailing interest, convince me that the Court should not proceed further into the political thicket than it has already gone in Avery.
The facts of this case afford a clear indication of the extent to which reasonable state objectives are to be sacrificed on the altar of numerical equality. We are not faced with an apportionment scheme that is a historical relic, with no present-day justification, or one that reflects the stranglehold of a particular group that, having once attained power, blindly resists a redistribution. The structure of the Junior College District of Metropolitan Kansas City is based upon a state statute enacted in 1961. Prior to that date, the individual school boards had the power to create their own junior colleges, as they still do, but there was apparently no authorization for cooperation among districts. The 1961 statute was enacted out of concern on the part of the legislature that Missouri's public educational facilities were not expanding at a satisfactory rate, see Three Rivers Junior College District of Poplar Bluff v. Statler, 421 S.W.2d 235, 237 (Mo.1967).  The provisions of the statute evidence a legislative determination of the most effective means to encourage expansion through cooperation between districts.
The statutory provision for election of the six-man board of trustees, summarized by the Court, reflects a careful balancing of the desirability of population-based representation against the practical problems involved in the creation of new educational units. The statute does not by its own force create any junior college districts; this is left to the initiative of the residents of particular areas who are interested in providing public junior-college education for their children. In recognition of the fact that individual school districts may lack the funds or the population to support a junior college of their own, the state legislature has authorized them to make voluntary arrangements with their neighbors for joint formation of a junior college district. If one of the cooperating school districts greatly preponderates in size, it enters into the arrangement knowing that its representation on the board of trustees, while large, will be somewhat smaller than it would be if based strictly on relative school enumeration.
The features of this system are surely sensibly designed to facilitate creation of new educational bodies while guaranteeing to small school districts that they will not be entirely swallowed up by a large partner. The small districts are free to avoid alliance with a highly populated neighbor, if they prefer to link with enough others of their own size to provide a viable base for a junior college. At the same time, a very large school district is probably capable of forming a junior college on its own if it prefers not to consolidate, on the terms set by statute, with smaller neighbors. On the other hand, large and small districts may work together if they find this the most beneficial arrangement.  The participation, as here, of seven smaller and one larger school district in the joint formation of a junior college district, represents a pragmatic choice by all concerned from among a number of possible courses of action.
I find it bizarre to conclude that such a voluntary arrangement effects an unconstitutional 'dilution' of the votes of residents of the largest school district. When the Court, in Reynolds, rejected a proposed analogy between state legislatures and the Federal Congress, it relied heavily on the fact that state legislative districts 'are merely involuntary political units of the State created by statute to aid in the administration of state government.' 377 U.S., at 548, 84 S.Ct. at 1374. In contrast, the National Government was created by the union of 'a group of formerly independent States.' The system of representation in Congress was 'conceived out of compromise and concession' between the larger and smaller States. Id., at 574, 84 S.Ct. at 1388. The system struck down today shares much of this same character of voluntary compromise. It is true that the analogy would be even closer if the legislature had left the school districts free to negotiate their own apportionment terms, rather than imposing a uniform scale; but as I read the Court's opinion today, it would strike down the apportionment in this case even if the terms had resulted from an entirely free agreement among the eight school districts. Insistence upon a simplistic mathematical formula as the measure of compliance with the Equal Protection Clause in cases involving the electoral process has resulted in this instance in a total disregard of the salutary purposes underlying the statutory scheme.
Finally, I find particularly perplexing the portion of the Court's opinion explaining why the apportionment involved in this case does not measure up even under the 'one man, one vote' dogma. The Court holds that the voters of the Kansas City School District, who elect 50% of the trustees, are denied equal protection of the laws because that district contains about 60% of the school enumeration. This is so because the statutory formula embodies a 'built-in discrimination against voters in large districts.' Ante, at 57. The Court seems to suggest that the same discrepancy among districts might pass muster if it could be shown to be mathematically unavoidable in the apportionment of the small number of trustees among the component districts; but the discrepancy is not permissible where it simply reflects the legislature's choice of a means to foster a legitimate state goal. This reasoning seems hard to follow and also disturbing on two scores.
First, to apply the rule with such rigor to local governmental units, especially single-function units, is to disregard the characteristics that distinguish such units from state legislatures. As I noted in my dissent in Avery, 390 U.S., at 488-490, 88 S.Ct. at 1122, 20 L.Ed.2d 45 there is a much smaller danger of abuse through malapportionment in the case of local units because there exist avenues of political redress that are not similarly available to correct malapportionment of state legislatures. Further, as noted above, the greater diversity of functions performed by local governmental units creates a greater need for flexibility in their structure. If these considerations are inadequate to stave off the extension of the Reynolds rule to units of local government, they at least provide a persuasive rationale for applying that rule so as to allow local governments much more play in the joints.
Such an approach is not foreclosed by the previous cases. In Reynolds, 377 U.S., at 577-581, 84 S.Ct. at 1389-1391, 12 L.Ed.2d 506, the Court catalogued a number of considerations indicating that '(s)omewhat more flexibility' might be permissible in state legislative apportionment than in congressional districting. Compare Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), with Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969). The need for more flexibility becomes greater as we proceed down the spectrum from the state legislature to the single-purpose local entity.
The disparities of representation in Avery were of an entirely different order from those here. In that case, each of the four districts elected one commissioner to the Commissioners Court, despite the fact that the population of one district was 67,906, while those of the remaining three were 852, 414, and 828. I think that the Avery rule, born in an extreme case, is being applied here with a rigidity that finds no justification in the considerations that gave it birth. Cf. Wells v. Rockefeller, 394 U.S., at 553, 89 S.Ct. at 1241 (White, J., dissenting). In this case, the disparity of representation is relatively minor. Even more important, it is not an unexplained and unjustified deviation from equality, see Swann v. Adams, 385 U.S., at 445-446, 87 S.Ct. at 572-573, but reflects an enlightened state policy of encouraging individual school districts to join together voluntarily to expand the State's public junior college facilities.
Second, the Court leaves unexplored the premises underlying its conclusion that the apportionment here does not achieve equality, 'as far as practicable.' Ante, at 57. Missouri is forbidden to use the statutory formula employed in this case because the percentage categories it creates will, in particular instances, only approximate equality, and because whatever discrepancy exists will always favor residents of the smaller districts. The Court does not suggest how a formula could be devised that would provide a general rule for application to all the various junior college districts but would not share these alleged faults. If a large district falling within a given pecentage range were allocated the number of trustees corresponding to the top, rather than the bottom, of the range, that would also produce, on the Court's theory, a 'built-in discrimination' against voters in small districts.
Thus, the result of the Court's holding may be that Missouri is forbidden to establish any formula of general application for apportionment of trustees, but must instead provide for the improvisation of an individual apportionment scheme for each junior college district after the contours of the district have been settled. But surely a State could reasonably determine that the mechanics of operating such a system would be so unduly burdensome that it would be better to apportion according to a statewide formula. Would not such considerations justify a conclusion that the statewide formula achieves equality 'as far as practicable'? While the Court does not discuss the problem, its invalidation of this statutory formula seems to be based on the premise that such practical considerations, like a State's desire to encourage cooperation among districts, are constitutionally inadequate to justify any divergence from voting 'equality.' The Court does not, however, spell out any rationale for concluding that such matters of administrative convenience deserve no weight in determining what is 'practicable.' This is especially incongruous in light of the Court's unexplained conclusion that deference can be given to legislative determinations that the boards should have a small number of trustees and that the trustees in some instances should represent component school districts. Why does the Court not require that the number of trustees be increased from six, in order to reduce the roughness with which equality is approximated? Would a three-man board be unconstitutionally small? Why is the Court willing to accept inequality that derives from a desire to give representation to component school districts, when similar inequality in state legislative districting could probably not be justified by a desire to give representation to counties? Cf. Reynolds v. Sims, 377 U.S., at 579-581, 84 S.Ct. at 1390-1391; Swann v. Adams, 385 U.S., at 444, 87 S.Ct. at 572. If equality cannot be achieved when representation is by component districts, why does the 'as far as practicable' standard not require at-large election of trustees? Is there something about these consideration that gives them a status under the Equal Protection Clause that is not possessed by a legislative desire to apportion by a formula of statewide application?
It seems to me that beneath the surface of the Court's opinion lie unspoken answers to these and other similar questions, questions that I can characterize only as matters of political judgment. The Court's adoption of a rigid, mathematical rule turns out not to have saved it from having to balance and judge political considerations, concluding that one does merit some weight in an apportionment scheme while another does not. The fact that the courts, rather than the legislatures, now are the final arbiters of such matters will continue, I fear, after the present decision to be the inevitable consequence of the shallow approach to the Equal Protection Clause represented by the 'one man, one vote' theory. The Court could at least lessen the disruptive impact of that approach at the local level by approving this relatively minor divergence from strict equality of the ground that the legislature could reasonably have concluded that it was necessary to accomplish legitimate state interests.
I would affirm the judgment of the Supreme Court of Missouri. What our Court has done today seems to me to run far afield of the values embodied in the scheme of government ordained by the Constitution.
^1 Counsel for appellees informed the Court at oral argument that prior to the passage of this statute, when the law merely authorized each school district in the State to establish its own junior college, there were only seven such junior colleges, with a total enrollment of approximately 5,000 students. Today there are 12 junior college districts, in which nearly 120 individual school districts participate, with a total enrollment of over 30,000 students.
^2 At the time this suit was filed, nine junior college districts had been formed pursuant to the statutory procedures. Of these, three did not contain a component district large enough to bring into play the fractional formula; the remaining six did contain such a district.