San Antonio Independent School District v. Rodriguez/Concurrence Stewart

by Potter Stewart

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 uncharted 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.

[p. 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. 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, 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).

[p. 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; McLaughlin v. Florida, 379 U.S. 184. 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, such a law would be invalid simply because it abridged the freedom of the press. Numerous cases in this Court illustrate this principle^[8].

[p. 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.

Notes

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; Kramer v. Union School District, 395 U.S. 621; Dunn v. Blumstein, 405 U.S. 330, 336. But there is no constitutional right to vote, as such. Minor v. Happersett, 21 Wall. 162. 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.
4. . See Oyama v. California, 332 U.S. 633, 644-646.
5. . See Graham v. Richardson, 403 U.S. 365, 372.
6. . See Griffin v. Illinois, 351 U.S. 12. "Indigency" means actual or functional indigency; it does not mean comparative poverty vis-à-vis comparative affluence. See James v. Valtierra, 402 U.S. 137.
7. . See Gomez v. Perez, 409 U.S. 535; Weber v. Aetna Casualty & Surety Co., 406 U.S. 164.
8. . See, e.g., Police Dept. of Chicago v. Mosley, 408 U.S. 92 (free speech); Shapiro v. Thompson, 394 U.S. 618 (freedom of interstate travel); Williams v. Rhodes, 393 U.S. 23 (freedom of association); Skinner v. Oklahoma, 316 U.S. 535 ("liberty" conditionally protected by Due Process Clause of Fourteenth Amendment).
9. . See Katzenbach v. Morgan, 384 U.S. 641, 660 (Harlan, J., dissenting).