7/-133,2. Memo to: Larry Hammond. Rodriguez. Here is a University of Missouri law review which Justice. stewart commended.

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1 7/-133,2 Memo to: Larry Hammond From: Lewis F. Powell, Jr. January 2, 1973 Rodriguez Here is a University of Missouri law review which Justice stewart commended. I recall - quite vaguely - that you have seen this. Yet, I had not read it until this morning. Although it has no basic ally new ideas, it is well written and some of the points are developed quite persuasively. Perhaps it might generate a note or two for our opinion. L. F. P., Jr. LFP, Jr. :pls Attachment.

2 January 8, 1973 Re: No San Antonio Independent School District v. Rodriguez Dear Lewis: Please join me. Sincerely, /s/ W.H.R. Mr. Justice Powell Copies to the Conference

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5 MEMORANDUM Hammond DATE: February 2, 1973 P owell, Jr. Rodriguez In other connections, I have run across the following cases that may possibly merit consideration as buttressing points made in our opinion: New Y~ 336 U.S. 106, 110 (1948): "It is no requirement of equal protection that all evils of the same genus be erradicated or none at all. Central Lumber Co. v. South Dakota, 226 U.S. 157, f6-o. " ~!JJ.iamson v. Lee Optical Co., 348 U.S. 483, 489 (1954): "The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies, or so the legislature may think. ~igner v. Texas, 310 U.S Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. Semler v. Dental '""'xaminers, 294 U.S The legislature may select one phase of one field and apply a remedy there, neglecting the others... The prohibition of the equal protection clause goes no further than the invidious dis~rimination." On an entirely different point, you might take a look at Justice Douglas' draft opinion for the Court in and (Lake Shore. ";'. ' '

6 2. ;!;! ~ '' ~. Auto Parts), and his ireu.ance with respect to the wide latitude of states as to taxation, on allied Stores of Ohio, 358 U.S. 522, """,,

7 .j;upumt Q}onrt ttf tltt 'J!l-nittb ~tafts 'JlasJrittgfctt.1[l. (!}. 20.?'-~c? CHAMBE:RS OF.JUSTICE THURGOOD MARS HALL January 9, 1973 Re: No San Antonio School v. Rodriguez Dear Lewis: In due time I will circulate a dissent in this case. Sincerely,:/ ' (!/{~ T.M. Mr. Justice Powell cc: Conference

8 Note re White's opinion in Rodriguez (1) He equates "local control" with local fiscal autonomy and thus fails to grapple with our statement that local control means more than local financing, it also means preservation of the traditional barriers against state interference with local affairs, i.e., it protects against the prospect that with state money goes state control over programs, class arrangements, and a number of other concerns preserved for the schools. (2) He relies on the state law which imposes a $1.50 barrier against excess spending. That law was not before the ct below and we do not indicate in our opinion whether tha! barrier is constitutional. Indeed, one USDC held that a similar provision in Florida was impermissible and we indicate, via a cf citation, that it might present a different case (see n. 82 p, 34 cite to Hargrave) (3) In his final paragraph he suggests that we have held that there is no ground for invocation of the e.p. cl here "because of the difficulty in identifying the class that is subject to the alleged discrimination." As I said this morning, while there is language in our opinion leaning in that direction that was not the thrust of our section on wealth. Instead we were explaining why this class, however defined, was not suspect. We added the other language in an effort to assuage Stewart. We should probably retool that section to clarify our points. SUMMARY The dissent is thin, as you suggest. His reasoning that there is no rational basis is unpersuasive on traditional e.p. analysis under the rational basis test. It also provides. I

9 little real guidabce to what system would be constitutional except to indicate (p. 2) that any such system should "extend a meaningful option to all local districts to increase their per pupil expenditures." Later, p.s, he says what his view does nqt portend and concludes that all that is required it is a system which "provides a rational basis for the maximatization of local control." Nowhere does he suggest how this is to be done short of either some scheme of "power equalizing" or full state funding. LAH,. ~,

10 ;%;npumt Qionrt of tl!t~1ttift~ ~tatct.l 'Jl!aslrittgtatt. p. <;. 2rTbfJ~;.1 CHAMBERS OF JUSTICE WILLIAM 0. DOUGLAS February 4, 1973 I Dear Byron: Please join me in your dissent in , San Antonio Independent School Dist. v. Rodriguez. ' ' William o. Douglas Mr. Justice White cc: Conference Law Clerks. :.

11 LAH 2/4/73 Res Schedule for Rodriguez Judge 1 If it meets with your approval I would like to pursue the following schedule with respect to finafuizing Rodriguez. (a) It should come down on March 19 (the first Monday of the next sitting period). (b) I would like to devote next week to the mountainous task of citechecking and proofing the opinion. As a major part of that endeavor, I will respond the Marshall's opinion in a few spots, I will see what evidence there is of the nature of "local control" in Texas (statutory or otherswise), A significant part of the job will be to read quickly through numerous sources to obtain any further valuable info (including the most recent Yale LJ article, Jencks Report, Mondale Committee Reports and Prints, Civil Rights Comm'n report on Educ, a recent Texas Research League report on Rodriguez, etc). (c) At the same time I have asked Bill to carefully edit the opinion before Wednesday of next week. (d) it is my goal to have the finally edited and beefed up draft on your desk by Firday (or no later than Saturday of next week). This would provide ample time for you to make whatever final changes you desire and to get it printed, circulated, and proofed c l osely one last time be f ore publication. (e) In order to assure the fiastest process, I suggest that we make available to Marshall's clerk any changes we make in response to his opinion so that he can be doing his final tooling up at the same time.

12 --2-- (f) You might also want to (1) get a formal note from the CJ for our records, (2) let PS know that we would like to come down 3/19 so that he will have his concurrence around. LAH

13 Rodriguez Judge As far as I'm concerned this is ready to go to the printer. Please check the following first. (1) I tried my hand at redrafting slightly the ~I introductory paragraph of the wealth section. In redrafting it I tried to come closer to stating exactly what the "threshold" questions were that should have been addressed below. I also changed the sentence structure to avoid having two sentences in a row with colons. Finally I thought it best to tone down the phrase you used in describing the salient questions--"merely some relative disadvantage characteristic of a free lfifil.ll.f}:fi#democracy." I think it might be read as an indication that we are out of sympathy with the disadvantageds attendant upon attendence to some Edgewood-type school. (2) In the concluding paragraph of the section I went ahead and added the cite to Kramer and rechecked to make sure that my Graijam cite was OK. If you want Kramer out just run a line through it. (3) I added the sentence you like in the rationality section on page 46 but altered it slightly to make it fit. See what you think. (When you're through you might have Sally put it on my desk downstairs and 1 11 carry it to the printer first thing in the morning.) Thanks LAH

14 .iuvrtmt <qourt of tlft ~nittb ~hdts'._utrmgtou. ~. ~ 2LlpJ!.~ CHAMBERS O F.JUSTICE POTTER STEWART February 8, 1973 Dear Lewis, Re: No San Antonio School Dist. v. Rodriguez Please forgive my delay in responding to your circulation in this case. The delay was occasioned by my intention to write a rather thorough memorandum, but that intention has been frustrated by a variety of time-consuming factors, ranging from reading abortion fan mail to preparing to leave for California today. I shall, therefore, necessarily be brief. First of all, I think you have done a magnificent job with this extremely important and factually complex case. I agree with the result you reach. Mter much consideration, however, I have decided I cannot subscribe to an opinion that accepts the "doctrine" that there are two separate alternative tests under the Equal Protection Clause, and that the necessary first step in any equal protection case is to decide which test to apply, and therefore first to decide whether a "fundamental interest" is affected. I do not for a moment criticize you for embracing this analysis. It is the analysis adopted by the district court in this case, the analysis briefed and argued before us, and the analysis that finds support in several of our recent cases. I have become convinced, however, that the theory that there is a "compelling state interest" te.st and a quite different "rational basis" test under the Equal Protection Clause is wholly spurious and unsound, in the absence of a "suspect" classification.

15 - 2 - The Equal Protection Clause is typically invoked to attack classifications made by state statutes. I fully agree that some few classifications are suspect, notably and primarily race, but also others, including alienage, perhaps sex, perhaps illegitimacy, and indigency. (I under stand indigency to mean actual or functional indigency, not comparative poverty vis-a-vis comparative wealth. ) A state law that makes such suspect classifications is, I think, presumptively invalid. A state law that impinges upon an individual liberty or freedom explicitly or implicitly guaranteed by the Constitution is also, I think, presumptively invalid. That, however, is not because of a "compelling state interest" test peculiar to the Equal Protection Clause, but because of the constitutional freedom that is impinged upon. In other words, a state law that impinges upon free speech or freedom of interstate travel is presumptively invalid for that reason alone, regardless of whether the state law makes any classifications. The so-called "compelling state interest" doctrine stems, I think, from a passage in the Court's opinion in the Kramer case less than four years ago. 395 U.S. 621, I understood that passage then, and I understand it now, to mean little or no more than what is said in the two paragraphs above. It is, incidentally, interesting to compare that passage with what the same author had to say about the Equal Protection Clause a few years earlier in McGowan v. Maryland, 366 U.S. 420, , a case in which very bona fide First Amendment claims were rejected. Application of the so-called "compelling state interest" test automatically results, of course, in striking down the state statute under attack. That is illustrated by the concession of the petitioner in the present case. There is hardly a statute on the books that does not result in treating some people differently from others. There is hardly a statute on the books, therefore, that an ingenious lawyer cannot attack under the Equal Protection Clause. If he can persuade a court that a "fundamental interest" is involved, then the state cannot possibly meet its resulting burden

16 - 3- of proving that there was a compelling state interest in enacting the statute exactly as it was written. The end result, of course, is to return this Court, and all federal courts, to the heyday of the Nine Old Men, who felt that the Constitution enabled them to invalidate almost any state laws they thought unwise. I have dictated this letter hurriedly, and I hope it is at least minimally intelligible. The upshot is that I cannot subscribe to an opinion in this highly important case that will perpetuate a very recent "doctrine" that I think is basically unsound. Sincerely yours, Mr. Justice Powell Copies to the Conference P. S. -- It occurs to me that some of the above thoughts were better expressed in my concurring opinion in the Shapiro case, 394 U.S. at 642.

17 ,Snprtmt <!fonrt d tqt ~tb,jhdts '~ihtsfti:ngton., ~. <If. 21lgt~~ CHAMBERS OF JUSTICE WILLIAM H. REHNQUIST February 8, 1973 Re: No San Antonio School District v. Rodriguez Dear Lewis: I share much of the concern expressed by Potter in his note to you of February 8th about the elaboration of the two separate alternatives test under the Equal Protection Clause in your opinion in this case. However, I joined your opinion not only because I thought it was well done and comprehensive, but because I felt that its holding was to apply the rational basis test to the facts before the Court. My lack of complete subscription to some of what I regard as dicta will not change my earlier view, and I am "still with you" as the saying goes. If Potter does write something that I feel one can consistently join while likewise joining your opinion, I will give some thought to it at that time. sincerely'f' Mr. Justice Powell cc: Mr. Justice Stewart

18 RODRIGUEZ Judge Following are my random thoughts as I have worked over your suggested changes and several of my own. (1) You have suggested citing Gunther's Harv. L. Rev. article. Especially you have suggested cites to his statements on pp 9 & 10. I am reluctant to cite him. (a) On page 9 he explains the enthusiasm for new categories of strict scrutiny as, in part, a result of the fact that the litigators and the commentators are the same people. Pointedly, as his fn indicates, he is referring to Coons, Clune & Sugarman. While he is correct I think he sounds as if he views that practice as somehow incestuous. If that is his point, I disagree, Indeed, I stand almost in awe of their performance. In any event, I see no place to put the quote. (b) His comments on page 10 refer to the apparent "open-endness" of the e.p.cl under the "new" analysis. But in so doing he is building on the arguments of people like Archie Cox and the plaintiffs in the school finance cases. He could not give much credence to the open-endedness claim if he read carefully Shapiro, Dandridge, and Lindsey v. Normet. If we want to talk about the claim that the "new" equal protection analysis is open-ended we should cite instead Justice Harlan who has most often made that claim. (2) I have reread and cited, in two places, the Vieira--U of Missouri--articl~t I have backed away, however, from any direct reliance on ~ sarticle because it takes a siomewhat different view of the fundamental rights doctrine than we do. He suggests that voting and criminal process are "fundamental" because they are necessary to access to the political process. He does not regard these as fundamental because they have some nexus with the Constitution. He makes another argument that you and I have discussed more than once. That is, if the states may not have disparities ~##ji# betveen districts, why may the federal government allow difference among states. I have tentatively decided not to address the argument in our opinion. It involves at least two subtle constitutional questions (1) is the due process clause of the 5th Amendment interchangeable with the equal protection clause?; (2) are we ready even to suggest in argument that in the due process clause lies the power for this Court or the federal Government to deliver the coup de grace to federalism? (3) The U. Va. law review article, as I may have mentioned, deals with intra-district inequalities. While it has a fair general discussion of the equal protection cases, I think we should not cite it since there are, apparently, a number of intradistrict financial inequality cases presently pending and I would not want us to appear to have decided that question. (There is, however, a U. Va. comment on Serrano which I have not read but which we might check and cite.)..

19 1 (4) I have added a footnote, ~ as per your suggestion, mentioning that political subdivisions need not be equal in every respect. I have reread two cases you cited to me (Bowers & Adickes). I think neither is apposite here. It is my judgment that we need to be careful not to say too much about the propriety of political subdivision lines inview of the fact that we have two major groups of cases which will involve precisely this question, i.e. the Richmond school case and the reapportionment cases. In each case the question arises whether the integrity of local subdivision lines should override the application of some constitutional principle under the equal protection clause. I tmink we are safe by~ saying simply that territorial uniformity is not a "per se" requirement. (S) I have gone again over Justice White's dissent. As my prior memo indicates, two problems bothered me most. First, his description of our holding with respect to wealth classifications. That is now corrected by the redraft I gave you yesterday. (2) His reliance on the $1.50 maximum rate. I have added a new footnote to dispose of this contention (see fn 107). His general thesis of irrationality is already adequately, in my view, answered in the opinion. But, when Marshall circulates we will probably want to make comments relevant to both opinions. (6) I have reread the Orange Brief filed by the 30 States. Relying on quotations therein I have added a new footnote 108 which catelogues some of the commentary on the widely held belief that control of policies goes with control of the punse strings. I have asked the Library to get me copies of the sourees I have cited so that I can check for better quotes and ascertain that what I have is accurate. I have also obtained from the Library the Mondale Committee hearings and prints (cited late in the Orange brief) and will add whatever helpful material I find therein for a later draft. (7) On page 1 I have changed from opinion for the Court to Memorandum (in hopes that eventualii#ly we can change it to "Mr Justice Powell announced the judgment of the Court.").

20 .hputttt <!}ourl l1f t!r~ ~ttittb ~taus:.as:jri:ttgtou. ~. <!}. 2llgt,.~ CHAMBERS OF JUSTICE HARRY A. BLACKMUN February 12, 1973 Re: No San Antonio Independent School District v. Rodriguez Dear Lewis: Your preparation of the proposed opinion for this very difficult case is a monumental and worthwhile effort. I suspect that you and Potter will be able to resolve your differences, as expressed by his letter of February 8. If you are able to do this, I am, of course, with you. If you are unable to do this, I find myself about where Bill Rehnquist is, as described in his note of February 8. Sincerely, Itt.;.. 1 Mr. Justice Powell cc: The Conference

21 ~rttttt <!Jcurl.rf tfrt ~nittb _itattg Jrltllltingtcn. ~. <!J. 2ll~'!.~ CHAMBERS OF.JUSTICE HARRY A. BLACKMUN February 12, 1973 Re: No San Antonio Independent School District v. Rodriguez Dear Lewis: This note is intended as an addendum to my circulated letter of this date. I have two very minor suggestions, neither of which is very important, but I pass them on to you for what they may be worth: 1. I personally would much prefer to omit the last paragraph of footnote 101 as it appears on page 41. Teachers 1 str1kes are in current vogue across the country. Emotions run deep. I fear that paragraph may add fuel to the controversy, and I would dislike to see the Court's footnote quoted by one side or the other. Teachers undoubtedly have been ~e_r'q_ai2 in the past. But so have nurses. Each profession has made great strides recently. Thus I would be inclined to let their economic problems be resolved apart from any comment by this Court in an opinion. 2. I found the next to the last sentence of the ir11t pa ~ graph of footnote also on page 41, to be somewhat confusing. It would be a little clearer for my benumbed mind if the sentence read, "The result is that relatively few school systems have merit plans of any kind, with the result that teachers' salaries are increased across the board... " Sincerely, Mr. Justice Powell