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command that no State shall deny to any person the equal protection of the
Justice Marshall, dissenting for himself and Justice Brennan and Blackmun found the special treatment of low income housing in this case to be invidious discrimination based on poverty, prohibited by the Fourteenth Amendment and previous Court decisions.243 The dissent criticizes the majority for only testing the California law in terms of racial discrimination. “It is far too late in the day”, said Justice Marshall, “to contend that the Fourteenth Amendment prohibits only racial discrimination; and to me, singling out the poor to bear a burden not placed on any other class of citizens tramples the values that the Fourteenth Amendment was designed to protect.'
It is possible that the explanation offered for the Court's decision in Dandridge also is appropriate to Valtierra.245 The Court may have recognized the classification at issue as imposing some hardships on the poor but it may not have considered the extent of the hardship great enough to warrant closer scrutiny of the State law involved.? The California law required a referendum only in the case of low-rent public housing ;247 other housing that would benefit low and moderate income families was not subject to a referendum.248 The Court also may not have believed that access to public housing warranted the same degree of protection as, for example, access to the courts.249
Another difference between Dandridge and Valtierra—besides the extent of the harm involved and the cases in which the "compelling state interest” doctrine has been applied is that both of these cases involved relatively recent government programs—public welfare and public housing. The rights of citizens to welfare and housing, unlike the right to vote, to access to the courts and, perhaps, to education, are not deeply imbedded in our laws or traditions. Valtierra and Dandridge suggest, therefore, that the Court does not believe that the government has a general obligation to remedy existing economic inequalities or provide an adequate supply of low-income housing. When the government ventures into these fields, its actions should not be subjected to intensive judicial scrutiny. One commentator has suggested that:
there are certain limits to the government's Constitutional obligation to further fundamental interests and relieve the plight of racial minorities and the poor, and that when remedial action is undertaken outside the area of constitutional compulsion the stringent judicial scrutiny normally trig
242 Id. at 1334. The fact that this case involved a referendum could not have been the principal element motivating the Court's decision. In other situations, the Court has invalidated actions accomplished by referendum. See, e.g., Reitman v. Mulkey, 387 U.S. 369 (1967); Hunter v. Erickson, 393 U.S. 385 (1969); Lucas v. Colorado General Assembly, 377 U.S. 713 (1964). See also Comment, “James v. Valtierra : Housing Discrimination By Referendum ?" 39 Univ. of Chic. L. Rev. 115, 117–18 (1971). One comemntator has suggested that newly enacted referendum requirements for public housing will not be sustained. See Lefcoe, op. cit. supra note at 1457. Another commentator has reached a contrary conclusion. See Comment, “James v. Valtierra : Housing Discrimination by Referendum ?" Id. at 127 n. 59. The New York State Assembly recently approved a law subjecting public housing projects to referendums—apparently in reaction to the public housing controversy in Forest Hills, Queens. N.Y. Times, Mar. 14, 1972 at 1, çol, 4. This bill is patently unconstitutional.
243 Id. at 1335. Justice Marshall relied on Douglas v. California, 372 U.S. 353 (1963) McDonald v. Board of Election, 394 U.S. 802 (1969) and Harper v. Board of Elections, 383 U.S. 663 (1966).
244 I d. at 1335.
245 As noted, the Serrano decision, of August 30, 1971, did not discuss Dandridge. Nor did it discuss Valtierra. Both of these decisions were decided before Serrano-April 6, 1970 and April 26, 1971, respectively.
246 See Lefcoe, op cit. supra note at 1416: “. the Court's opinion was based on a determination that the article was reasonable even though it affected poor people specially." See also Note, “The Equal Protection Clause and Exclusionary Zoning After Valtierra and Dandridge,” 81 Yale L. J. 61, 80 (1971).
247 Nor was it clear that the referendum provision doomed public housing in California. 62 percent of the referendums covering 52 percent of the proposed units had yielded affirmative results. See Lefcoe, op. cit. supra note at 1400.
248 See, e.g., United States Housing Act of 1937 $ 23, as amended, Housing and Urban Development Act of 1965 $ 103 (a), 42 U.S.C. $ 1421 (b) (1970), (leased housing program) ; 42 U.S.C. § 1421 (b) (1970) (turnkey I); 42 U.S.C. § 1421 (b) (a) (3) (1970) (turnkey leasing) ; 12 U.S.C. $ 1701 (1970) (rent supplement program). See also Sloane, "Toward Open Adequate Housing: The 1968 Housing Act : Best Yet-But Is It Enough?!" 1 Civ. Rights Dig., No. 3 (1968).
249 Public housing accounts for only about 1 percent of the Nation's housing stock and fewer than 10 percent of people classified as in poverty occupied publicly owned units. See Lefcoe, op cit. supra note at 1423–24. See also Lefcoe, Id. at 1391: "Denying an indigent person the right to a divorce can be regarded as a greater hardship than the one inflicted by [the California law]."
gered by the presence of fundamental interests and suspect classifications is
no longer appropriate. Valtierra, coming on the heels of Dandridge, has created concern that the Court is abandoning its special solicitude for the poor and that the "compelling state interest" doctrine will be allowed to atrophy. One commentator concluded :
Valtierra affirms once again that poverty or weath classifications are not being assigned that same station as racial categories ... Valtierra
can be seen as marking the end of a doctrinal detour.251 Another commentator decried the fact that in Valtierra "the Court may have signaled a retreat from its formerly expansive interpretations of the fourteenth amendment. Recent decisions of the Court, however, suggest that Valtierra and Dandridge do not necessarily herald a turn-around from the past.
On February 23, 1972, the Court reaffirmed its position that the poor are entitled to special considerations when they are seeking access to the courts. The Court, however, refused to hold that the poor's interest in decent shelter is so fundamental as to warrant special Court scrutiny when dealing with State statutes regulating landlord-tenant relations. At issue in Lindsey v. Normet 253 were three provisions of Oregon's Forcible Entry and Wrongful Detainer Statute which provided that 1) trials in eviction proceedings were to be held no later than six days after the complaint was served, unless the tenant provided security for accruing rent; 2) the only issue that could be considered at the trial was the tenant's failure to pay rent; any defenses, such as lack of repairs, could not be raised ; 3) if the tenant lost the case and wished to appeal, he had to post a bond, guaranteed by two sureties for twice the amount of rent expected to accrue during the appeal, the bond to be forfeited if the lower Court decision was affirmed.
The Court held that neither the expedited trial nor limitation of defenses provisions violated the due process or equal protection clauses. Due process requirements were met since the proceeding was sufficiently simple that a short notice requirement was not unreasonable and since other types of actions were available to the tenant to raise whatever defenses he had. Nor was equal protection violated because suits under the statute differed significantly from other litigation where the time between complaint and trial is substantially longer and where a broader range of issues may be considered. The potential application of the statute reaches all tenants-rich and poor, commercial and noncommercial. Treating tenants sued for possession of property differently from tenants sued in other types of actions, moreover, is impermissible only if there is no valid State objective. An analysis of the purposes of the Oregon law convince the Court that “Oregon was well within its Constitutional powers in providing for rapid and peaceful settlement of these disputes.'
The Court, having concluded that the “rational basis” test protects the Oregon statute from an equal protection attack, next considered appellants argument that a more stringent standard than mere rationality should be applied. Appellants argued that:
the "need for decent shelter" and the "right to retain peaceful possession of one's home" are fundamental interests which are particularly important to the poor and which may be trenched upon only after the State
demonstrates some superior interest.255 The appellants relied on the "suspect" classification and "fundamental interest” cases.
.258 In rejecting this argument, the Court said:
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 to dwellings of a particular quality or any recognition of the right of a tenant to occupy the real property of his landlord beyond
250 See Note, “The Equal Protection Clause and Exclusionary Zoning After Valtierra and Dandridge,” 81 Yale L.J. 61, 79 (1971).
251 See Lefcoe, op. cit. supra note at 1457, 1458. See also Schoettle, op. cit. supra note at 1405 where the author states that the Dandridge and Valtierra decisions "cast doubt upon the status of poverty as a criterion meriting particular scrutiny under the equal proteetion clause."
252 See Comment, “James v. Valtierra : Housing Discrimination by Referendum ?” 39 Univ. of Chic. L. Rev. 115, 142 (1971). Cf. Note, “The Equal Protection Clause and Exclusionary Zoning After Valtierra and Dandridge,” 81 Yale L.J. 61, 72 (1971): "Despite cries of despair to the contrary, "Dandridge and Valtierra do not signal an end to the relevance of equal protection doctrine in assessing the constitutionality of exclusionary zoning laws.'
253 40 L.W. 4184 (1972).
the term of his lease, without the payment of rent or otherwise contrary to the terms of the relevant agreement. Absent Constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships is a legislative not a judicial function. Nor should we forget that the Constitution expressly protects against confiscation of private property or
the income therefrom. The Court, however, concluded that the double-bond prerequisite for appealing did violate the equal protection clause; it discriminates against tenants appealing from adverse decisions and cannot be related to any valid State objective. The Court relied on those cases which hold that where an appeal is granted to some litigants it cannot be capriciously or arbitrarily denied to others.258 Here the Court found the State's justification for the double-bond provision to be “arbitrary and irrational" and noted :
The discrimination against the poor, who could pay their rent pending an appeal but cannot post the bond is particularly obvious. For them, as a practical matter, appeal is foreclosed, no matter how meritorious their case may be. The non-indigent ... appellant [in this type of action] also is confronted by a substantial barrier to appeal faced by no other civil
litigant in Oregon." In a separate opinion, Justice Douglas agreed that the double bond provision violated the equal protection clause. He characterized the interest in one's home as a "fundamental interest” 280 and proceeded to apply the "compelling interest” test:
Modern man's place of retreat for quiet and solace is the home. Whether rented or owned it is his sanctuary. Being uprooted and put into the street is a traumatic experience. Legislatures can of course protect property interests of landlords. But when they weigh the scales as heavily as does Oregon for the landlord and against the fundamental interest of the tenant
they must be backed by some “compelling interest." 261 Justice Douglas, however, disagreed with the majority's view that the expedited trial provision and one-issue-trial requirement of the Oregon statute did not violate the due process clause. The former provision effectively denied tenants' access to the courts, particularly slum tenants ; “this kind of summary procedure usually will mean in actuality no opportunity to be heard." While normally a State may bifurcate trials by considering one issue in one suit and another issue in another suit. ... where the right is so fundamental as the tenant's claim to his home, the requirements of due process should be more embracing." 283
Concern for the poor was expressed by the Court in Lindsey but was not controlling in finding an equal protection violation; discrimination related to wealth, however, was directly related to the Court's finding of an equal protection violation in Bullock v. Carter,
,204 decided the day after Lindsey. Bullock involved a Texas law requiring a candidate to pay a filing fee as a condition for being on the ballot in a primary election. Fees ranged as high as $8,900.285
At the outset, the Court recognized it had to decide which standard of review was appropriate. The Court said :
The threshold question to be resolved is whether the filing fee system should be sustained if it can be shown to have some rational basis, [citing Dandridge and McGowan v. Maryland, 366 U.S. 420] or whether it must
withstand a more rigid standard of review. 20 As in Harper v. Virginia Board of Elections,207 the requirement here had an impact on the franchise since the requirement of high filing fees narrows the field of candidates, thus limiting the choice of voters. And this limitation especially affects the less affluent. As the Court said:
257 Id. at 4190.
263 Id. at 4195. Justice Douglas added : “In the setting of modern urban life, the home, even though it be in the slums, is where man's roots are. To put him into the street when the slum landlord, not the slum tenant, is the real culprit deprives the tenant of a fundamental right without any real opportunity to defend. Then he loses the essence of the controversy, being given only empty promises that somehow, somewhere may allow him to litigate the basic question in the case." Id.
284 40 L.W. 4211 (1972).
there is the obvious likelihood of this limitation falling most heavily on the less affluent segment of the community, whose favorites might be unable to pay the large costs required by the Texas system ... [I]t gives the affluent the power to place on the ballot their own names or the names of persons they favor. * * * 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 means. The Court, relying on Harper, concluded that because of the influence of an impact on the franchise and an impact which is "related to the resources of the voters supporting a particular candidate,” more is required than a showing that the law has some rational basis; it is necessary that the law be "closely scrutinized” and found reasonably necessary to the accomplishment of legitimate state objectives.? Applying this test, the Texas law is found wanting. Even under conventional standards of review-the rational basis test—the Court considers the Texas law "extraordinarily ill-fitted” to the goals Texas asserts the law is designed to achieve. 240 The Texas law, the unanimous Court concluded, denies equal protection because :
Texas has erected a system which utilizes the criterion of ability to pay as a condition to being on the ballot, thus excluding some candidates otherwise qualified and denying an undetermined number of voters the
opportunity to vote for candidates of their choice. 271 The Bullock case appears to move well beyond Harper. It shows special conceru for the interests of the less affluent. While Harper said that a person could not be denied the ballot because of his economic circumstances, Bullock says that economic circumstances cannot be allowed to limit the impact of a person's vote. The analogy to the racial cases is close. The Fifteenth Amendment proscribes voting denials based on race and such cases as Gomillion v. Lightfoot, and Fortson v. Dorsey 273 suggests that devices that minimize the voting impact of minorities will not be tolerated. At least in the voting area, therefore, the Court appears to be according race and poverty equal consideration.
What do these recent decisions portend for the school finance cases? Obviously, predicting what the Supreme Court will do is risky business, particularly at a time of changing Justices. It seems safe, however, to predict that the Court will continue to specially scrutinize certain types of legislation that affect persons differently because of their wealth. Although the Court has used language indicating that a classification related to wealth is in itself sufficient to warrant close scrutiny, ,275 the cases suggest that close scrutiny will not be accorded unless
268 op. cit. supra note at 4214.
271 I d. at 4216. cf. Svarb v. Lennox, 40 L.W. 4227 (1972)—-decided the day as Bullock-where the Court upheld a lower court judgment affording special protections to persons earning less than $10,000 a year who sign contracts that contain confession of judgment clauses which permit creditors to automatically obtain a court judgment in the event the debtor fails to meet the terms of the contract. Again, the Court demonstrated that it is appropriate to consider relative wealth when denials of equal protection are alleged.
272 364 U.S. 399 (1960). This case involved a gerrymander which removed Negro voters from the city of Tuskegee. The scheme did not deprive Negroes of the right to vote; it altered the impact of that vote.
273 379 U.S. 433, 439 (1965). In Fortson the Court indicated it would invalidate multimember voting districts if they could be shown to "minimize" or "cancel out" the voting strength of a racial minority. See also Burns v. Richardson, 384 U.S. 73, 88 (1966). Compare Connor V. Johnson, 402 U.S. 690 (1971) with Whitcomb v. Chavez, 403 U.S. 124 (1971).
374 That "suspect" classifications may be somewhat ephemeral is illustrated by Lery v. Louisiana supra and Glona v. American Guarantee and Liability Ins. Co., supra where the Court concluded that illegitimates constituted a suspect classification and Labine v. Vincent, supra, where 3 years later, the Court decided that they did not. Perhaps the Court's change of heart was based on its view of the importance of the different interests affected by the classifications in the former cases, the right to maintain wrongful death actions; in the latter case, the right to inherit. Or perhaps the difference in the decisions related more to the change in the composition of the Court. Nevertheless, the Court's treatment of illegitimates does not necessarily foreshadow its attitude toward the poor. Illegitimacy, perhaps, can be eradicated if there are sufficient disincentives. The Bible, however, tell us: "For ye have the poor always with you.” Matthew 26:11. Justices also have distinguished between illegitimates and the poor. Compare Chief Justice Taney. Lessee of Brewer v. Blougher, 14 Pet (39 U.S.) 178, 198–199 (1840): "All illegitimate children are the fruits of crime ; differing, indeed, greatly in its degree of enormity," with Mr. Justice Byrnes, Edwards v. California, 314 U.S. 160, 177 (1941): "Poverty and immorality are not synonomous.'
275 See McDonald v. Board of Election Comm., 394 U.S. 802, 807 (1969).
the discrimination based on wealth affects some other important interest or right. Generally, when the interest affected comes within the rubric of “political or civil rights”, a person's economic circumstances will not be allowed to result in even a minor impairment of his ability to exercise his right. Thus, wealth may not impede the exercise of the ballot nor may it limit a voter's choice of candidates; wealth may not deny access to the courts in criminal cases, nor may it act as a bar in certain civil cases.
On the other hand, when a wealth classification affects an interest that can be labeled "social or economic”, the Court's decision as to whether to afford close scrutiny to the alleged discrimination will depend upon its evaluation of the magnitude of the injury.
The failure, for example, to provide large families on welfare with proportionately more funds than smaller families as in Dandridge or the creation of barriers to the construction of some types of housing within the means of the poor as in Valtierra, has not been regarded by the Court as resulting in injuries of sufficient magnitude as to warrant close scrutiny.
In this area, however, matters of degree are significant. Although the Court refused to mandate a particular level of subsistence in Dandridge, it has declared illegal legislation which barred persons from obtaining subsistence, as in Traux v. Raich 278 and Shapiro v. Thompson.277 Similarly, in Valtierra, the Court declined to hold that some types of housing could not be restricted, but where restrictions on housing have been general and widespread, the Court has reached contrary conclusions.?
.278 Economic and social interests, therefore, do obtain close consideration from the Court when their invasion is especially widespread ; political interests, however, merit protection even against minor encroachments. 270
There are strong arguments for treating education as a political or civil right. Many of the reasons for placing education in a special category have been explored in our consideration of the cases which have social interests, therefore, do obtain close consideration from the Court when their invasion is especially widespread; political interests, however, merit protection even against minor encroachments.280
There are strong arguments for treating education as a political or civil right. Many of the reasons for placing education in a special category have been explored in our consideration of the cases which have afforded education special
276 239 U.S. 33 (1915). 277 394 U.S. 61 8 (1969). 278 See eg, Buchanan v. Warley, 245 U.S. 60 (1917); Shelley v. Kraemer, 334 U.S. 1 (1948); Jones V. Alfred Mayer Co., 392 U.S. 409 (1968); Rcitman v. Mulkey, 387 U.S. 369 (1967).
279 The Chairman of the Commission on Civil Rights, Reverend Theodore M. Hesburgh recently conmented upon the dichotomy between political and civil rights and economic and social rights. “The rights of individuals in this country have been largely a collection of political and civil liberties which are rooted in a centuries-old tradition But to secure the dignity of hunan beings more is required than political and civil rights. [T]00 often we have been dealing with social and economic issues in this country as problems, as the discharge of minimal responsibilities to take care of the needy. When we have asked to provide economic or social benefits, we have viewed such action as bestow. ing a privilege. Our people have political and civil rights; in the economic, social, and cultural areas, we disperse privileges. This is too narrow a view. [T]here is a split in the world between the definitions of rights in the western world and in the socialist world. To socialist governments the great rubric of human rights focuses essentially on economic rights. We, on the other hand, have focused somewhat more on political and civil rights. . [T]o make meaningful and civil and political guarantees under the Constitution they must be extended to economic and social rights." See “Beyond Civil Rights," unpublished remarks of Reverend Theodore M. Hesburgh delivered to the American Jewish Committee, May 13, 1971.
250 The Chairman of the Commission on Civil Rights, Reverend Theodore M. Hesburgh recently commented upon the dichotomy between political and civil rights and economic and social rights. “The rights of individuals in this country have been largely a collection of political and civil liberties which are rooted in a centuries-old tradition But to secure the dignity of human beings more is required than political and civil rights. [T100 often we have been dealing with social and economic issues in this country as problems, as the discharge of minimal responsibilities to take care of the needy. When we have asked to provide economic or social benefits, we have viewed such actions as bestowing a privilege. Our people have political and civil rights; in the economic, social, and cultural areas, we disperse privileges. This is too narrow a view. [T]here is a split in the world between the definitions of rights in the western world and in the socialist world. To socialist governments the great rubric of human rights focuses essentially on economic rights. We, on the other hand, have focused somewhat more on political and civil rights. [T]o make meaningful the civil and political guarantees under the Constitution they must be extended to economic and social rights." See “Beyond Civil Rights," unpublished remarks of Reverend Theodore M. Hesburgh delivered to the American Jewish Committee, May 13, 1971.