PAULA KADRMAS AND SARITA KADRMAS, A MINOR BY HER NEXT FRIEND, PAULA
KADRMAS, APPELLANTS V. DICKINSON PUBLIC SCHOOLS, ET AL.,

   No. 86-7113

   In the Supreme Court of the United States

   October Term, 1987

   On Appeal from the Supreme Court of North Dakota

   Brief for the United States as Amicus Curiae Supporting Appellees

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Introduction and summary of argument
   Argument:
      Appellees' school bus user fee system does not violate the
      Equal Protection Clause of the Fourteenth Amendment
      A. A user fee system is a rational, nondiscriminatory
         means of funding the cost of delivering public goods and
         services
      B. North Dakota's system of permitting nonreorganized
         districts to impose user fees for school bus transportation
         is rational
      C. Appellees' school bus user fee system should not be
         subjected to heightened judicial scrutiny because of
         the effect that scheme has on the poor
   Conclusion

                          QUESTION PRESENTED

   The United States will address the following question:

   Whether the user-fee system authorized by North Dakota state law
and implemented by the Dickinson Public School system, under which the
parents of schoolchildren must pay a graduated, per student,
non-waivable fee in order for their children to use the school bus
system, violates the Equal Protection Clause of the Fourteenth
Amendment.

                     INTEREST OF THE UNITED STATES

   This case presents the question whether a State may condition
participation in the use of a publicly provided service on the payment
of a "user fee," i.e., a charge paid by an individual for the use of a
publicly provided good or service, such as transportation, that also
is (or might be) funded by the government from its general revenues.
The Court's resolution of that question could affect the federal
government in several ways.  The federal government by statute
conditions access to some federal programs and services on the payment
of small but not insignificant fees.  /1/ Several federal statutes
authorize federal agencies to impose user fees.  /2/ Also, the federal
government provides substantial amounts of financial assistance to
States for services for which the States are directed or permitted by
federal law to require some form of contribution by those who use the
service.  /3/ Further, several federal statutes subject certain
activities to excise taxes, which are similar to user fees.  /4/

   Finally, the Office of Management and Budget (OMB) has recently
proposed a revision of federal policy authorizing federal agencies to
charge for the use of government services or property.  OMB Circular
No. A-25, User Charges, 52 Fed. Reg. 24890 (1987) (proposed July 1,
1987).  The proposed policy would require that a user fee be assessed
against "each identifiable recipient for benefits derived from federal
activities beyond those received by the general public." Ibid.  /5/
The Court's decision in this case could affect the federal
government's ability to impose direct or indirect user fees as a
condition of participation in federal or federally-funded programs.
That result would limit the government's flexibility in conducting
these programs and narrow the range of choices open to Congress and
federal agencies.

                               STATEMENT

   1. North Dakota state law provides for the consolidation or
"reorganization" of local school districts at their option.
Reorganization generally tends to expand a district's pupil population
and its tax base and to promote larger and more centralized schools.
These economies of scale, however, require more students to travel
greater distances.  Reorganized districts are required under state law
to provide cost-free transportation to schoolchildren or to reimburse
their travel expenses.  N.D. Cent. Code Section 15-27.3-10 (Supp.
1978) (reprinted in J.S. App. A45).  Nonreorganized districts may
choose whether or not to provide transportation to schools, and may
charge a user fee for any such service.  N.D. Cent. Code Section
15-34.2-06.1 (1981 & Supp. 1987).

   The Dickinson School District is not reorganized (J.A. 36), and has
chosen to maintain a school bus transportation system.  The system,
including a fee schedule, was approved by local voters in 1973 (J.A.
33, 36, 44).  But transportation is available only to students who
attend public or parochial kindergarten or elementary schools more
than three miles from their homes, or who attend secondary schools
more than four miles from their homes (J.A. 33, 36, 44, 45) A
graduated transportation fee is charged for bus service to and from
school:  $97 per year for one child, $150 per year for two children,
up to a maximum of $315 for five or more children (J.A. 16, 36, 44).
The fee for one-way service or for children attending kindergarten is
half the above rate, and no fee is charged to any special education or
handicapped student (J.A. 16, 24).  The fee does not depend on the
distance travelled by individual users, and does not vary with a
family's income or ability to pay.  /6/ The user fee generates
approximately 11% of the total cost for the service, while the
remaining 89% comes from state and local tax revenues (J.A. 45, 54).
/7/

   2. The appellants, Paula Kadrmas and her daughter Sarita, a
schoolchild enrolled in the Dickinson Public School system in North
Dakota, live in a rural area near the town of New Hradec, which is 16
miles from the Roosevelt Public School, where Sarita attends classes.
J.A. 35, 43.  Appellant's immediate family has a gross income at or
near the poverty level, as defined by state eligibility requirements
for certain programs (J.A. 36-37, 46).  Appellants' family moved to
their present residence near New Hradec in 1981 (Appellants' Br. 3),
at which time the home-to-school busing service and fee system were in
force (J.A. 31).  Appellant Paula Kadrmas was aware at the time that
Sarita would have to attend school in Dickinson (J.A. 32), and she
paid the busing fee in the years before 1985 (J.A. 30, 31).  /8/

   Appellants refused to pay the busing fee for the 1985-1986 school
year and were therefore denied transportation.  Appellants made
private transportation arrangements during the school year, and
appellant Sarita Kadrmas attended school on a regular basis throughout
the year (J.A. 32, 37;  see J.A. 45).  Apart from their co-plaintiffs
(who are no longer parties here), no other Dickinson School District
parent refused to pay the busing fee, and no child was denied the
opportunity to attend public school (J.A. 37).

   3. Appellants brought suit in North Dakota state court, alleging
that the state's policy of permitting non-reorganized districts to
charge fees for transportation to public schools violated the state
and federal constitutions.  The trial court rejected several state
constitutional challenges to the scheme adopted by the state
legislature (J.A. 38-41).  It also rejected appellants' claims that
the user fee system violated the Equal Protection Clause of the
Fourteenth Amendment.  /9/ The transportation fee charged by the
Dickinson School District was rational, the court explained, because
the amount of fees collected may not exceed the actual cost of the
transportation less the amount subsidized by the State, and because
the graduated fees charged to families of schoolchildren was a
reasonable way to charge for use of the bus service (J.A. 41).

   The Supreme Court of North Dakota, by a divided vote, affirmed
(J.A. 53-68).  It ruled that appellants did not have the right under
the state constitution to free transportation to and from public
school (J.A. 54-61).  As the court explained, "transportation is not a
necessary element of the educational process, and it is not an
integral part of the educational system to which the (state)
constitution refers in requiring the Legislature to provide 'a uniform
system of free public schools.'" (J.A. 60).  The court also found that
the provisions of state law did not violate the Equal Protection
Clause of either the state or federal Constitution, concluding that
the user fee system was a rational means of funding public services
and did not unconstitutionally discriminate against indigents or
against the residents of nonreorganized school districts (J.A. 61-65).
 "A statutory scheme under which a school district offers to provide
student transportation at considerably less expense to the parent than
self-transportation would entail does not constitute a deprivation
which offends either federal or state equal protection rights" (J.A.
63).  The difference between reorganized and nonreorganized school
districts was also "rationally related to a legitimate government
purpose," because its "obvious purpose" was "to encourage school
district reorganization with a concomitant tax base expansion and an
enhanced and more effective school system" (J.A. 64).  /10/

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   Appellants offer a constitutional proposition which is at once
novel and alarming in its implications for the authority of
governments to choose both the objects of public expenditures and the
means of financing them.  If appellants are correct, then any uniform
exaction -- here, a user fee, but the point would hold as well for
sales taxes, excise taxes, or any nonprogressive tax in general -- may
run afoul of the Equal Protection Clause because such an exaction
bears more heavily on those with less resources to meet it.  Indeed,
appellant's propositions would be applicable as well even to graduated
income tax schemes, since a question might always be raised as to the
degree of progressively and the appropriateness of including or
excluding some system of exemptions.

   A fee uniformly charged to all users of a particular good or
service does not discriminate against those with less resources just
because such a fee is harder to bear as one has less money to bear it.
 That a good or service is provided by some unit of government carries
no general constitutional obligation that it be provided free of
charge and financed out of general revenues.  Nor can a contrary
conclusion be made more plausible by suggesting that those with less
resources are pro tanto a suspect category so that measures which may
be thought to bear more heavily on them must carry some special burden
of justification.  Not only is financial capacity a matter of infinite
gradations so that the usual terms of equal protection analysis have
no way to take a logical grip, but also any such proposition could not
be confined to user fees but would have to extend to any governmental
exaction.

   There are some facilities which government is obligated to make
available without charge to those unable to pay for them:  e.g.,
defense counsel in a criminal prosecution, transcripts in a criminal
appeal, and access to court where, as in divorce, government controls
a person's status.  Bus transportation to and from school bears none
of the indicia whereby such provision is constitutionally mandated.
The government here is not acting coercively towards an individual or
determining his legal status.  Nor does Plyler v. Doe, 457 U.S. 202
(1982), support appellants' claim.  In Plyler, the children were
complaining of a non-uniform fee which specifically discriminated
against a class with several characteristics of a suspect category,
and in the context of such discrimination the right to education
assumed sufficient significance to vitiate the explicitly
discriminatory scheme.  Here, the scheme is nondiscriminatory on its
face, and both the class and any discrimination must be found in the
unintended differential burden a uniform fee imposes on a person with
less ability to pay.

   Whatever the constitutional status of the right to a primary or
secondary education, such a right cannot be thought to be implicated
here.  The user fee in question is not imposed on school attendance
but on transportation to and from school.  While it is obviously true
that reaching school is a precondition to attending school, no
decision of this Court has ever suggested that such preconditions to
the enjoyment of a right must be subsidized to the same extent that
the right itself must be accorded.  That is understandable;  just as a
child's enjoyment of educational opportunities is impaired by
difficulties in reaching school, so, too, they are impaired by poor
diet, clothing, and living conditions.  Yet the delivery of these
goods is a matter of the community's political, not its
constitutional, obligations, and it would be odd, to say the least, to
single out school bus transportation for special judicial attention.

                               ARGUMENT

 APPELLEES' SCHOOL BUS USER FEE SYSTEM DOES NOT VIOLATE THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT

 A. A User Fee System Is A Rational, Nondiscriminatory Means Of
Funding The Cost Of Delivering Public Goods And Services

   In a mixed private and public economy, the government will
oftentimes decide to supply a particular service, such as
transportation, either as a competitor to the private sector (e.g.,
buses) or as a monopolist (e.g., subways or bridges).  Public services
can be paid for in several ways.  Government can use the income
received from general tax revenues or from the sale of public bonds,
it can spend the income generated from the sale of other publicly
controlled goods (such as licenses), it can charge a fee to cover the
costs of delivering a service, or it can apply a combination of the
above approaches.  Government can also adopt one approach to pay for
the construction or establishment of a public facility (such as
issuing bonds to pay for the cost of building a bridge), but use a
different means of covering the cost of operating and maintaining that
facility (such as charging toll).

   Decisions whether and how much of a service to provide, and how any
such service will be funded, are the stuff of the demoncratic
political process.  Choices among competing priorities are possible
only on an assessment of public preferences based on the perceived
needs of a particular political unit.  There is no one correct way to
make these trade-offs, and any resolution will unavoidably be favored
by some and disfavored by others.  Government therefore must have
considerable latitude in accommodating these needs.  As the Court
explained in Dandridge v. Williams, 397 U.S. 471, 485 (1970) (citation
omitted), "(t)he problems of government are practical ones and may
justify, if they do not require, rough accommodations -- illogical, it
may be, and unscientific.

   A user fee system does not "classify" among or "discriminate"
against any category of individuals.  A flat user fee treats everyone
alike (as does a sales tax).  As long as a user fee system is not
applied in a manner that arbitrarily singles out a particular person
or class of individuals (see Yick Wo v. Hopkins, 118 U.S. 356 (1886)),
a user fee system does not "discriminate" on any ground other than the
uncontroversial principles that those who benefit from a service may
be asked to pay for it.

   Even if a user fee system does classify among individuals in some
way, such a system is nonetheless valid under the Constitution.  The
Court has consistently recognized that, absent a convincing reason to
believe that the normal operation of the political process has been
unconstitutionally skewed, decisions about how to collect or spend
public revenues should be left to the political branches of
government.  It is well settled that social welfare legislation --
i.e., legislation implementing political decisions allocating the
benefits and burdens of government's fiscal and social policy -- need
withstand only a minimal level of scrutiny in order to survive a due
process or equal protection challenge.  E.g., Bowen v. Gilliard, No.
86-509 (June 25, 1987);  Schweiker v. Hogan, 457 U.S. 569 (1982);
Jefferson v. Hackney, 406 U.S. 535 (1972);  Dandridge v. Williams,
supra.  Governments have the widest latitude to "concentrate limited
funds where the need is likely to be greatest" (Califano v. Boles, 443
U.S. 282, 296 (1979)), and where the benefits of public expenditures
are likely to be most fruitful.  The decisions implemented in social
welfare legislation will therefore be sustained as long as the
legislature's judgment is not patently arbitrary.  E.g., Bowen v.
Gilliard, slip op. 10-11;  Bowen v. Owens, 476 U.S. 340 (1986);
Califano v. Aznavorian, 439 U.S. 170 (1978);  Flemming v. Nestor, 363
U.S. 603 (1960).

   A user fee system for financing part of the cost of the goods and
services that government delivers is clearly valid under the
Constitution because it rationally combines elements of public finance
and private choice.  It places an increased share of the cost of such
service on those who most directly benefit from it, and thus lowers
the tax burden which must otherwise be borne by the general public.
By looking for payment to those persons who use a service, a user fee
system, by definition, operates in a rational manner.  As in the
operation of the private market, a user fee system tends to minimize
the commitment of resources to activities whose cost exceeds their
social utility.

 B. North Dakota's System of Permitting Nonreorganized Districts To
Impose User Fees For School Bus Transportation Is Rational

   1. A school bus transportation user fee is clearly an example of
rational public financing.  It has never been claimed that local
governments are constitutionally required to create a transportation
system for schoolchildren (or the general public) at all, or that they
are required to subsidize the use of private bus services.
Municipalities can channel their funds into other programs and leave
to parents the responsibility for transporting their children to
school.  If the government does decide to operate a bus service itself
in order, for example, to serve areas that existing bus lines will not
reach, it follows that the government should be allowed the choice
whether to pay for that service out of its general tax revenues, or by
a fee charged to the persons who use that service, or (as here)
through some combination of the two.

   Thus, the North Dakota Supreme Court correctly held that the user
fees were "rationally related to the legitimate governmental objective
of allocating limited resources" (J.A. 64).  In placing a small
portion of the cost of bus transportation on those who use that
service, the user fee system allows limited funds to be spent
elsewhere.  /11/ The North Dakota Supreme Court was also correct in
characterizing the challenged busing policy as "purely economic
legislation" (J.A. 65).  Its decision is consistent with the decisions
of this Court deferring to the social and economic policy judgments of
state and local governments.  See, e.g., Idaho Dep't of Employment v.
Smith, 434 U.S. 100 (1977);  Massachusetts Bd. of Retirement v.
Murgia, 427 U.S. 307 (1976);  James v. Valtierra, 402 U.S. 137 (1971).

   2. The State has also articulated a rational basis for the
existence of two types of school districts:  reoganized districts,
which must provide free transportation, and nonreorganized districts,
which need not provide transportation and may charge a fee if they
choose to provide it.  That scheme is the result of two competing sets
of concerns, both of which influenced the State legislature.  On the
one hand, the legislature had an interest in encouraging
reorganization, because it would expand the physical size, pupil
populations, and tax bases of school districts, thus improving their
operational and fiscal soundness.  Such reorganization would result in
larger, more cost-efficient central schools.  The location of such
schools, however, would often require children to travel greater
distances, thus justifying the mandatory provision of free bus
transportation in order to make the reorganization plan acceptable to
many parents (State's Mot. to Dismiss 12).  On the other hand, the
legislature chose not to make reorganization mandatory.  The
legislature allowed nonreorganized districts to exist as a matter of
local option, and left such nonreorganized districts free to make
their own decisions about whether to provide bus transportation and
whether to charge for such transportation as they do provide.

   Although appellants might have preferred a centrally-imposed,
uniform system for all school districts, the State did not act
irrationally in trying to accommodate those localities that still
desire, in view of their particular circumstances, to remain
unconsolidated.  Cf. Hazelwood School Dist. v. Kuhlmeier, No. 86-836
(Jan. 13, 1988), slip op. 12;  San Antonio Indep. School Dist. v.
Rodriguez, 411 U.S. 1, 49-53 (1973).  The fact that an accommodation
of local preferences results in differential treatment of persons in
reorganized and nonreorganized districts does not render the overall
scheme irrational;  "the validity of a broad legislative
classification is not properly judged by focusing solely on the
portion of the disfavored class that is affected most harshly by its
terms." Schweiker v. Hogan, 457 U.S. at 589;  see also Vance v.
Bradley, 440 U.S. 93, 108-109 (1979).  The question is whether the
underlying state policy is rational.  The state's policy here meets
that test.

 C. Appellee's School Bus User Fee System Should Not Be Subjected To
Heightened Judicial Scrutiny Because Of The Effect That Scheme Has On
The Poor

   Appellants and amici contend that the user fee system must pass
heightened judicial scrutiny, because it imposes a financial burden on
lower-income rural families, /12/ and because it unjustifiably hampers
their ability to enjoy a free public education.  Neither claim has
merit.

   1. Appellants' claim that the evenhanded application of this user
fee has an adverse impact on indigents plainly falls far short of
asserting a constitutional violation.  This Court has consistently
rejected arguments that indigency is a suspect category and that
economic legislation is unconstitutional under the Equal Protection
Clause if its impact varies with differences in financial resources.
See, e.g., Harris v. McRae, 448 U.S. 297, 322-323 (1980);  Maher v.
Roe, 432 U.S. 464, 470-471 (1977);  Rodriguez, 411 U.S. at 24, 28;
Ortwein v. Schwab, 410 U.S. 656, 660 (1973);  United States v. Kras,
409 U.S. 434, 446 (1973);  Dandridge v. Williams, supra.  Although
there are particular instances where the government may affect
personal rights in a direct way, so that the government may be
constitutionally required to forgo charging a fee at all, to waive an
otherwise uniform fee, or to provide funds to assure that indigents
are not foreclosed from participating fully in a particular process
(e.g., Boddie v. Connecticut, 401 U.S. 371 (1971) (divorce filing
fees);  Harper v. Virginia Board of Elections, 383 U.S. 663 (1966)
(poll taxes);  Gideon v. Wainwright, 372 U.S. 335 (1963) (defense
counsel in a criminal prosecution);  Griffin v. Illinois, 351 U.S. 12
(1956) (transcript of criminal trial)), those instances are extremely
limited.  See Harris v. McRae, supra (no right to funding for
abortion);  United States v. Kras, supra (no right to a waiver of
filing fees for voluntary bankruptcy).

   Indeed, a user fee system would be valid even if it had an adverse
economic effect on a racial minority -- unless the government
"selected or reaffirmed" the fee "at least in part 'because of,' not
merely 'in spite of,' its adverse effects" upon that minority.
Personnel Adm'r v. Feeney, 442 U.S. 256, 279 (1979);  see also
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252
(1977);  Washington v. Davis, 426 U.S. 229 (1976).  It follows a
fortiori that a user fee is not unconstitutional for the reason alone
that -- like any uniform pricing mechanism -- it has an adverse
economic impact on those with less resources.  /13/

   Any other conclusion would be a major departure from this Court's
precedents holding that social and economic legislation need only be
rational to survive an equal protection challenge.  There exists an
extensive body of legislation intended to benefit the urban and rural
poor, which strongly militates treating indigency as a suspect or a
quasi-suspect category.  See City of Cleburne v. Cleburne Living
Center, Inc., 473 U.S. 432, 443-444 (1985).  /14/ Nor are indigents so
politically powerless as to comprise a "discrete and insular" minority
that is unfairly denied an opportunity to form successful electoral
coalitions.  /15/

   Finally, unlike race, poverty is neither an "immutable"
characteristic nor one that is even defined by any well-established,
discernible contours.  Although there are different statutory and
administrative determinations, such as state eligibility tests that
place appellants here at or near the "poverty line" (Appellants' Br.
4;  cf. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. at
445), these determinations can (and do) vary with the purpose for
which they are made (cf. Jefferson v. Hackney, supra), and with the
legislature, agency, or jurisdiction that makes them.  It would be
incongruous to treat such shifting and uncertain boundaries as
defining a constitutionally "suspect" or "quasi-suspect" class.

   Treating wealth disparities as a suspect classification, and
viewing user charges as discriminatory in relation to that
classification, would open to constitutional and therefore judicial
scrutiny a vast amount of legislation, from gasoline taxes to utility
charges or driver's license license fees, all of which bear more
heavily on those with fewer resources.  Indeed, all legislative
choices regarding the redistribution of wealth -- including the
decision to do nothing /16/ -- would fall within the sweep of the
principle appellants must advance to sustain their challenge to this
scheme.

   Judicial attempts to remedy the disparate impact on the poor of
legislation such as that involved here could be ineffective, if not
counterproductive.  Mandating transfer payments in order to protect
one class of recipients could have unintended harmful effects on the
beneficiaries of other equally desirable social programs.  For
example, a decision to invalidate appellee's user fee policy would
leave appellees with a variety of possible responses, some of which
could much further worsen the situation of the rural poor.  Appellees
might reduce expenditures on other educational or social services.
Appellees might discontinue school bus service altogether, or
eliminate home-to-school service and resume station-to-school service
for all children.  Or they might limit qualification for free bus
service to some defined degree of indigency.  And if appellees chose
to offset the revenue loss by increasing taxes, that decision
(depending on the form of tax chosen) might increase the burden on all
taxpayers, including the poor -- unless appellants were to pursue the
logic of their argument to its extreme and demand judicial scrutiny of
the scope and progressively of particular tax schemes.  /17/

   In the final analysis, appellants' argument that they have the
right to be exempted from a user fee requirement because of the
financial burden that fee imposes on the poor is practically
indistinguishable from a claim that appellants have a substantive
constitutional right to an income transfer in the amount of that fee.
Put another way, appellants' claim is essentially identical to a claim
by any parent who lives at the poverty level that he has a substantive
constitutional right to subsidized bus or subway tokens so that his
children can ride to public school.  Providing free transportation to
and from school may be sound social policy, but it is not one to which
the Equal Protection Clause is addressed.  See Harris v. McRae, 448
U.S. at 326.

   2. Appellants attempt in various ways (Appellants' Br. 13-17, 22,
24-25) to predicate their claim of a federal constitutional violation
upon the fundamental place of education in society and under state
law.  This Court's decisions concerning the funding of public
education, however, do not suggest that the user fee system at issue
here should be examined under anything other than a test of minimum
rationality.  In San Antonio Indep. School Dist. v. Rodriguez, 411
U.S. 1 (1973), the Court considered the constitutionality of Texas'
system of financing the operation of its public schools in part from
local sources of revenue, particularly property taxes.  Due to this
funding system, there were substantial interdistrict disparities in
public school expenditures.  In rejecting an equal protection
challenge to the state's system of public school finance, this Court
rejected the claims that wealth is a suspect category and that
education is a fundamental right.  411 U.S. at 18-40.  Instead, the
Court held that a school financing scheme is constitutional if it
bears "some rational relationship to a legitimate state purpose." Id.
at 44.  The Texas school financing system was valid, the Court
concluded, because it permitted and encouraged a large measure of
local control over public school education.

   Nor does this Court's decision in Plyler v. Doe, 457 U.S. 202
(1982), support appellants.  In Plyler, the Court held that the
complete denial of state funding for, and the imposition of a tuition
charge on, illegal alien schoolchildren was unconstitutional.  In so
ruling, the Court applied an intermediate level of scrutiny to the
state scheme.  Id. at 217-218 n.16, 223-224, 230;  id. at 232-235
(Blackmun, J., concurring);  id. at 238-240 (Powell, J., concurring).
The classification that led to that scrutiny, however, was the status
of the students as children of parents who had entered the country
illegally;  unlike the children here, they alone were charged tuition.
 The Court therefore drew an analogy to the cases in which it had
applied an intermediate level of scrutiny to classification based on
illegitimacy, because illegal alien schoolchildren were also penalized
by the tuition fee for the misconduct of their parents.  /18/
Moreover, in addition to being illegal aliens, the children in Plyler
were part of several different and overlapping classes, each of which
bore some of the historical attributes of a "suspect" category.  They
were predominantly Mexican, a category defined by national origin that
has persistently encountered discrimination in Texas.  See Hernandez
v. Texas, 347 U.S. 475, 479-480 (1954).  They were minors, and thus
unable to vote, and the form of vicarious representation ordinarily
available to minors -- parential suffrage -- was not (and could not
become) available to them, because their parents were illegal aliens.
Because the Court reasonably expected the children to remain in this
country, the stigma of lasting illiteracy, which the Court foresaw as
the result of the state's imposition of tuition fees (Plyler, 457 U.S.
at 223), threatened to make the children into a permanent underclass,
in violation of the Fourteenth Amendment's intent to abolish caste
legislation.  See id. at 213 ("The Equal Protection Clause was
intended to work nothing less than the abolition of all caste-based
and invidious class-based legislation.").

   Appellants also rely on the bootstrap argument that public
education triggers heightened judicial scrutiny under the federal
constitution because it is a fundamental right and the object of great
public attention under North Dakota law.  /19/ Public education,
however, is not a fundamental right guaranteed by the federal
constitution (Rodriguez, 411 U.S. at 35-37;  Plyler, 457 U.S. at 221,
223), and it cannot be made so by the way it is treated under state
law.  Whether a "right" is fundamental under the federal Constitution
turns on whether it is "explicitly or implicitly guaranteed by the
Constitution." Rodriguez, 411 U.S. at 33-34.  Moreover, under
appellants' theory, the federal constitution would require a state to
spend additional funds on public education precisely because the state
is itself constitutionally committed to education and already spends
generously on educational programs.  That outcome would perversely
restrict the ability of state and local governments to control funding
and operation of a public school system.

   Assuming an affirmative answer to a question that the Court has
left open -- whether programs resulting in the denial of a minimally
adequate education must be subjected to heightened constitutional
scrutiny /20/ -- it does not follow that the government is
constitutionally required to subsidize any facility associated with
the enjoyment of educational opportunities.  Such constitutionally
guaranteed facilitation would surely have to extend to include the
provision of food, clothing, shelter, and other prerequisites to the
ability to make use of educational opportunities.  No decision of this
Court remotely supports such a proposition, and the case law is, in
fact, to the contrary.  Harris v. McRae, 448 U.S. at 316 ("(A)lthough
government may not place obstacles in the path of a woman's exercise
of her freedom of choice, it need not remove those not of its own
creation.  Indigency falls in the latter category.").  See Shaffer v.
Board of School Directors of the Albert Gallatin Areas School Dist.,
687 F.2d 718 (3d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)
(neither the Due Process not the Equal Protection Clause requires
government to provide free transportation to and from public school);
cf. Sutton v. Cadillac Area Public Schools, 117 Mich. App. 38, 323
N.W.2d 582 (1982) (same result under state constitution);  see also,
e.g., Regan v. Taxation With Representation, 461 U.S. 540, 545-549
(1983) (government is not required to fund the exercise of First
Amendment rights);  Maher v. Roe, supra (upholding a state's decision
to fund the expenses of childbirth but not abortion).  /21/

   Finally, the fact that free bus transportation is provided in some
but not all districts does not render the state financing scheme
invalid.  It is clear that the Constitution is not violated by even
significant variations in the quality of teachers, school facilities,
and the like.  Rodriguez, 411 U.S. at 36.  It follows that
interdistrict differences in the provision of free school
transportation (or other services, such as vaccinations or school
lunches) is plainly constitutional, at least where, as here, they stem
from variations in school funding and local spending decisions.  Id.
at 49;  see Papasan v. Allain, No. 85-499 (July 1, 1986), slip op. 21.

                              CONCLUSION

   The judgment of the Supreme Court of North Dakota should be
affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WM. BRADFORD REYNOLDS

      Assistant Attorney General

   DONALD B. AYER

      Deputy Solicitor General

   ROGER CLEGG

      Deputy Assistant Attorney General

   PAUL J. LARKIN, JR.

      Assistant to the Solicitor General

   DAVID K. FLYNN

   ROBERT J. DELAHUNTY

      Attorneys

   JANUARY 1988

   /1/ See, e.g., United States v. Kras, 409 U.S. 434 (1973)
(bankruptcy filing fee);  5 U.S.C. (& Supp. IV) 552(a)(2) and (4)(A)
(Freedom of Information Act fees);  28 U.S.C. (& Supp. III) 1911 et
seq. (federal filing fees);  22 C.F.R. Pt. 22 (passport fees).

   /2/ See, e.g., 31 U.S.C. 9701 (authorizing heads of federal
agencies to charge for "a service or thing of value provided by the
agency");  43 U.S.C. (& Supp. III) 1734, 1740, 1764(c) and (g)
(authorizing the Secretary of the Interior to recover reasonable costs
of processing right-of-way applications);  Section 3401 of the Omnibus
Budget Reconciliation Act of 1986, Pub. L. No. 99-509, 100 Stat.
1890-1891 (Authorizing the Federal Energy Regulatory Commission to
impose reasonable user fees);  Section 7601 of the Consolidated
Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, 100
Stat. 146-147 (authorizing the Nuclear Regulatory Commission to charge
reasonable user fees);  Section 7005 of the Consolidated Omnibus
Budget Reconciliation Act of 1985, Pub. L. No. 99-272, 100 Stat.
140-141 (to be codified at 49 U.S.C. App. 1682a) (authorizing the
Secretary of Transportation to impose user fees on pipeline operators
transporting hazardous materials).

   /3/ See, e.g., 42 U.S.C. 1395e (Medicare Part A);  42 U.S.C. (&
Supp. III) 1395l(b) (Medicare Part B);  42 U.S.C. 1396o (Medicaid);
12 U.S.C. (& Supp. IV) 1709(c) (residential mortgage insurance
premium).

   /4/ See, e.g., 26 U.S.C. (& Supp. III) 4251 (excise tax on
telephone communications);  26 U.S.C. (& Supp. III) 4261 et seq.
(excise tax on air travel);  26 U.S.C. (& Supp. III) 5001 et seq.
(excise tax on distilled spirits, wines, and beers);  26 U.S.C. (&
Supp. III) 5701 et seq. (excise tax on cigars, cigarettes, smoking
tobacco, etc.).

   /5/ The objectives of this policy are (52 Fed. Reg. at 24890):

         a. To ensure that each service, sale, or use of Government
      property or resources provided by an agency to specific
      recipients be self-sustaining.

         b. To promote efficient allocation of the Nation's resources
      by establishing charges for special benefits provided the
      recipient that are at least as great as costs to the Government
      of providing the special benefits;  and

         c. To allow the private sector to compete without
      disadvantage in supplying comparable services, resources, or
      property where appropriate.

   /6/ The school district's "Transportation Agreement" provides that
"(t)he bus fee is due and payable at registration time unless prior
arrangements are approved through the administration office" (J.A. 20,
36).  It is not apparent from the terms of the agreement whether the
provision for "prior arrangements" is designed to allow for either a
partial or complete waiver of payments.  Appellant Paula Kadrmas
testified that she was aware that the $97 annual fee need not be fully
paid in advance, and she, in fact, paid the fee in installments in
other years (J.A. 31-32).  There was also testimony from a Dickinson
School District official that the district tried to accommodate
persons who had not fully paid fees from earlier years, and that the
district had not gone to court over delinquent fees (J.A. 34).

   /7/ For example, in the 1984-1985 school year, the district's
busing costs amounted to $312,147, of which about $244,000 was
defrayed by the State, about $34,000 was paid from local property
taxes, and about $34,000 was collected through busing fees (J.A.
33-34, 45).  State law requires that the total fees collected not
exceed the difference between the average cost of the service and the
state subsidy.  N.D. Cent. Code Section 15-34.2-06.1 (1981 & Supp.
1987).

   /8/ Paula Kadrmas was, however, in arrears for prior years (J.A.
47).

   /9/ The court concluded that the difference between reorganized and
nonreorganized school districts was not irrational, and ruled that the
user fee system did not unconstitutionally discriminate against
appellants on the basis of wealth (J.A. 40-41).  The court treated
only the second of these issues as having been raised under the
federal Constitution (J.A. 41).

   /10/ The dissent concluded that free school transportation is not
constitutionally required, but found that the application to
appellants of the appellees' school bus user fee violated the state
constitution (J.A. 65-68).

   /11/ See, e.g., Heckler v. Matthews, 465 U.S. 728 (1984)
(sustaining amendments to social security program primarily designed
to hold down costs);  James v. Valtierra, 402 U.S. 137, 143 (1971);
Ortwein v. Schwab, 410 U.S. 656, 660 (1973).

   /12/ Although appellants do not couch their argument in precisely
those terms, we believe that the above description is a fair reading
of their claim (Br. 20) that "(a)t the heart of this challenge is the
fact that North Dakota is punishing a group of students, who bear no
responsibility for their status, nor have the means to change it, in
an effort to coerce for district to organize and expand." Appellants
therefore seem to claim that the State's classification is invalid
because, for insufficient reasons, it discriminates against a class
defined, at least in part, by "immutable" characteristics similar to
those associated with a "suspect" category.  That claim, in turn,
amounts to an assertion that the class in question is "quasi-suspect."

   /13/ The Court has ruled that legislation that on its face imposes
a restriction measured by lower income status is not invalid under the
Equal Protection Clause if it is rationally defensible.  In James v.
Valtierra, supra, the Court sustained a state constitutional
requirement that low-income housing projects be approved by a majority
of the voters at a community referendum.  This Court ruled that the
state procedure "ensures that all the people of a community will have
a voice in a decision which may lead to large expenditures of local
governmental funds for increased public services and to lower tax
revenues." 402 U.S. at 143 (footnote omitted).

   /14/ Hour and wage legislation, legislation protecting collective
bargaining, social security, the farm program, the creation of the
Office of Economic Opportunity, fair employment laws, manpower
training programs, unemployment compensation, public assistance,
public housing, public education, subsidi(z)ed health care, etc., have
all had as their rationale at one time or another the need to help the
poor." Winter, Poverty, Economic Equality, and the Equal Protection
Clause, 1972 Sup. Ct. Rev. 41, 98.  Other federal programs designed to
benefit the rural poor include funding for rural electrification, see
7 U.S.C. (& Supp. IV) 901 et seq., aid for farm housing, see 42 U.S.C.
(& Supp. III) 1471 et seq., and health care for migrant agricultural
workers, see 42 U.S.C. 254b.

   /15/ See United States v. Carolene Products Co., 304 U.S. 144, 152
n.4 (1938);  cf. City of Cleburne v. Cleburne Living Center, Inc., 472
U.S. at 445.  Until fairly recently, rural voters, including the rural
poor, enjoyed a built-in legislative advantage over urban dwellers,
since rural communities were typically (albeit unconstitutionally)
overrepresented in the political process.  See Baker v. Carr, 369 U.S.
186, 248 n.4 (1962) (Douglas, J., concurring);  Gray v. Sanders, 372
U.S. 368, 379 (1963);  id. at 386 (Harlan, J., dissenting).

   /16/ Legislative "inactions" may also have a discernible
wealth-based impact without being constitutionally invalid.  Cf.
Gordon v. Lance, 403 U.S. 1 (1971) (a state can constitutionally
require referendum approval by a supermajority of voters before
deciding to incur bonded indebtedness).

   /17/ Appellants contend (Appellants' Br. 27) that there are "many
viable alternatives to non-waivable busing fees." But even if
appellants were right that their preferred alternatives would be
better public policy than the system chosen by local voters, it does
not follow that the user fee is so "irrational" as to be
unconstitutional.  Moreover, a decision that the user fee was
unconstitutional would not bind the appellees to choose one of the
options that appellants have sketched.  Appellees might instead select
one of the alternatives we have mentioned above.

   /18/ Plyler, 457 U.S. at 220 (citing Trimble v. Gordon, 430 U.S.
762 (1977), and Weber v. Aetna Casualty & Sur. Co., 406 U.S. 164, 175
(1972));  Plyler, 457 U.S. at 238 (Powell, J., concurring) ("(t)he
classification at issue deprives a group of children of the
opportunity for education afforded all other children simply because
they have been assigned a legal status due to a violation of law by
their parents").

   /19/ Appellants appear to suggest that education, although not a
fundamental right under the federal Constitution, is sufficiently
important to be ranked as a "quasi-fundamental" right.  The Court has
quite properly never held that there exists such a category as
"quasi-fundamental" rights.  See Rodriguez, 411 U.S. at 31 (quoting
Shapiro v. Thompson, 394 U.S. 618, 661 (1969) (Harlan, J., dissenting)
("If the degree of judicial scrutiny of state legislation fluctuated,
depending on a majority's view of the importance of the interest
affected, we would have gone 'far toward making the Court a
"super-legislature."'").

   /20/ See Papasan v. Allain, No. 85-499 (July 1, 1986), slip op. 19;
 Rodriguez, 411 U.S. at 23, 25 n.60, 36-37;  see also Plyler, 457 U.S.
at 234 (Blackmun, J., concurring) ("classifications involving the
complete denial of education are in a sense unique");  Shapiro v.
Thompson, 394 U.S. at 633.

   /21/ The case law seems generally to agree that programs relating
to such education-related benefits are not constitutionally suspect
because they have disparate wealth-based effects.  For instance, the
courts have held that it does not deny equal protection for a school
lunch program to operate so as to favor schools with existing kitchen
facilities (and hence, assertedly, with greater resources), see Briggs
v. Kerrigan, 431 F.2d 967, 969 (1st Cir. 1970);  or for the antifraud
regulations governing a school meals program to work an incidental
hardship on households of poor illegal aliens, see Alcaraz v. Block,
746 F.2d 593, 604-606 (9th Cir. 1984);  or for NCAA regulations to bar
certain types of outside aid for participants in intercollegiate
athletic programs, despite the claimed adverse impact on those
participants from poor rural backgrounds, see Colorado Seminary (Univ.
of Denver) v. NCAA, 417 F. Supp. 885, 897-898 (D. Colo. 1976), aff'd,
570 F.2d 320, 321 (10th Cir. 1978).