William H. Rehnquist: We'll hear argument next in Number 91-2012, Jackie Holder v. E. K. Hall. Mr. Murphy, you may proceed.
R. Napier Murphy: Mr. Chief Justice and may it please the Court: This case involves a claim that section 2 of the Voting Rights Act requires Bleckley County, Georgia, to enlarge its current, single-member county commission to a five-person commission. Our position is that the act cannot be read as authorizing Federal courts to alter the size of governing bodies. Instead, the existing structure of State and local governments, the number, and types of offices, must be taken as a given, a basic assumption. Thus, while the method of election may be a cognizable claim, changing the size of a government to prove a voting rights violation is not.
Sandra Day O'Connor: Well now, that means that if, for instance, we had a situation where some counties had three-member commissions and others had five-member commissions, that if minority voters in a three-member commission county sued under section 2 seeking a five-member commission, you would say that, as in this case, section 2 just doesn't cover it.
R. Napier Murphy: Your Honor, our position is not that section 2 doesn't cover a claim. Our argument is that section 2 cannot be read as authorizing Federal courts to change the size of the government. The courts must look at the existing structure when analyzing a section 2 claim.
Anthony M. Kennedy: Suppose there were a commission, a county commission of five commissioners, and it was shrunk to three, allegedly causing a dilution, would there be a section 2 remedy for the court in that instance?
R. Napier Murphy: There would be a remedy under section 5. That change--
Anthony M. Kennedy: No... no, I said section 2.
R. Napier Murphy: --If there were a lawsuit seeking to change the size of the government from five--
Anthony M. Kennedy: No. No, my hypothetical is that the commission, as constituted, has five commissioners. It is then reduced to three. Is there a section 2 violation if it can be shown that there is a dilution?
R. Napier Murphy: --If there was an intentional reason to dilute minority voting strength because of the reduction, yes, there would be a violation. It would in my opinion be a section 5 claim instead--
Anthony M. Kennedy: No, but--
R. Napier Murphy: --of a section 2 claim.
Anthony M. Kennedy: --It's not intentional. Suppose it's not intentional and it's not covered by section 5. Suppose it's not a section 5 jurisdiction.
R. Napier Murphy: If there has been a retrogression of minority voting strength and minority votes are diluted by virtue of that change by county government, then there would be a section 2 claim, but the county--
Anthony M. Kennedy: So that the overarching proposition that section 2 does not apply to changes in the size of a governing body has at least one exception in the case that I put.
R. Napier Murphy: --No, sir. The county has not tried to change the size of the local governing body here. There has been a group of private plaintiffs who have filed a lawsuit seeking to change the size of the local governing body. Our position is that the intent of Congress in writing section 2 was not to guarantee election to office, not to guarantee proportional representation, but simply to question whether the existing size, or the existing system dilutes minority--
Anthony M. Kennedy: But I just want to make sure what your proposition is. I thought that you'd stated at the outset that section 2 is not applicable to changes in the size of governmental entities, and I put this hypothetical designed to test that, and I'm still not sure of your answer.
R. Napier Murphy: --Your Honor, section 2 has not... section 2 addresses the method of electing persons to office. If there were a change by the government from five to three, and it could be proven that there was a dilution of minority voting strength as a result of that, then there would be a claim under section 2.
Anthony M. Kennedy: All right, then the courts are, in that instance, interfering with a governmental decision as to what the size of the governing body ought to be.
R. Napier Murphy: That is because the governing body has made a change in the size. In our case, the governing body has made no change in the size.
Anthony M. Kennedy: It's just a difference between an act of omission and of commission?
R. Napier Murphy: No, sir, I don't agree with that. I don't think an act of omission is the same as an act of commission. There was one case from Carroll County, Georgia, in which there was a change in the size of the county commission from three to one, and in that case the plaintiffs were able to prove an intent to discriminate and to dilute minority voting strength as a result of that. That is not the situation in our case.
David H. Souter: Is it your position that in a multiofficial district, if the lines were not redrawn, let's say, that there never could be a dilution claim? Let's assume you had a county with... that elected three commissioners, its population had been static for the last 50 years. Is it your position there could never be a dilution claim brought against that county?
R. Napier Murphy: Under the preconditions set forth by this Court in Gingles, in order to bring a vote dilution claim, you must meet three preconditions.
David H. Souter: Well, I... let me interrupt you, if I may. Maybe I don't understand you. I thought you were taking a position that there could be a challenge only if there had been some change by the county in the manner in which the electoral district was established. Was I wrong on that?
R. Napier Murphy: There can be a change... there can be a challenge, regardless of whether there has been a change or not.
David H. Souter: All right.
R. Napier Murphy: Our position in this case--
David H. Souter: Well, why is the case different in a multiofficial district than it is from the district before us, where there's only one commissioner?
R. Napier Murphy: --Well, in the district before us we're talking about a single-member district--
David H. Souter: Yeah.
R. Napier Murphy: --which is the smallest political unit from which any elected person can--
David H. Souter: Well, I grant you that, but if change by the government in the manner of disposing of its authority is not a precondition in non-single-member districts, why should it be a precondition in a single-member district?
R. Napier Murphy: --There's nothing magical about this being a single-member district. The question is--
David H. Souter: Well, if there isn't, don't you lose?
R. Napier Murphy: --No, sir. The question here is whether Congress intended, under section 2, to authorize Federal courts to judge the governmental structure not as it presently is constituted, but as it might be in a hypothetical model, and if we have three, or five, or seven, or one, it doesn't matter how many members you are electing to office, minority members could always come in and say, in our five-member commission we are in a minority, we can't get elected, but if you increase the commission to 10, then we have a chance to have proportional representation.
Antonin Scalia: Mr. Murphy-- --I thought you said that you could compel a change from three to five, that there had been a certain change in the demographics.
R. Napier Murphy: Our position is, the court, when it is analyzing a section 2 claim, must analyze the claim according to the existing governmental structure. It presupposes--
Ruth Bader Ginsburg: But since you've conceded that you can look to the way it was... let's say you go from five and shrink it to three, or even to one, you concede there could be a dilution case that plaintiffs could win by showing the way it was when it was five, and the way it is when it's three or one. So you can compare what was to what is, but you can't compare what is to what will be? Is that--
R. Napier Murphy: --Exactly, Your Honor. In order to--
Ruth Bader Ginsburg: --But why-- --Why? --why not?
R. Napier Murphy: --Because the statute... when you talk about changing government structure, you're talking about local voters voting to change the way their county is operated, whether it be by one, three, five, and in the cases thus far, there have been changes in the size of the local governing body, and the courts have looked to see whether there was an attempt to discriminate because of the change in the local governing body.
Sandra Day O'Connor: Well, there wasn't a change in the-- --Well-- --Houston Lawyers case. That was a case of voters seeking a change. That was judges elected county-wide--
R. Napier Murphy: In the--
Sandra Day O'Connor: --for each judge--
R. Napier Murphy: --Your Honor--
Sandra Day O'Connor: --and this case appeared, at least, in Houston Lawyers, to reject the kind of blanket exclusion from section 2 that you're urging.
R. Napier Murphy: --Houston Lawyers I do not believe involved a challenge to any district that had only one judge. I believe all of the judges in Houston Lawyers were from multimember districts, so to speak.
Sandra Day O'Connor: Well, there were a number of judges elected by the voters county-wide. Each judge was voted on county-wide by the voters, right?
R. Napier Murphy: Some of those counties... all of those counties had more than one judge. There were three--
Sandra Day O'Connor: Yes.
R. Napier Murphy: --3 up to 59, and--
Sandra Day O'Connor: Each one elected county-wide, right?
R. Napier Murphy: --That's correct.
Sandra Day O'Connor: Yes. What's the distinction? What is the principle for your distinction? I don't get it.
R. Napier Murphy: The distinction here is not that a sole commissioner form of government is not subject to section 2. Our argument here is that a section... that the sole commissioner form of government does not dilute minority voting strength. Everyone in this county votes for one representative for the entire political jurisdiction. Every person's vote counts equally.
David H. Souter: You can state that whenever the government, for example, goes from a multimember district to a single-member district. If that's true, you'll never have a dilution claim in those cases, either.
R. Napier Murphy: Our case--
David H. Souter: Will you? You'll never have a dilution claim in those cases on your reasoning, will you?
R. Napier Murphy: --Would you repeat the question, Your Honor?
David H. Souter: Well, if the county, for example, decided to go from a multimember district to three single-member districts, and it did it in a carefully crafted way that would exclude any minority election, on your theory, there never would be a dilution claim in that kind of case.
R. Napier Murphy: In that kind of case, you would have a section 5 preclearance--
David H. Souter: Let's assume that somebody is asleep under section 5. The question is whether you have got a section 2 claim, and on your reasoning, you would not have, isn't that true?
R. Napier Murphy: --If the method of electing judges violates or dilutes... or electing any representative, dilutes minority voting strength, then you do have a claim--
David H. Souter: But on your reasoning, you never would have a dilution claim, isn't that true?
R. Napier Murphy: --My reasoning... my argument here is that when you analyze a section 2 claim, you don't look to... you look at the existing structure. You cannot look at what might be. You cannot look--
David H. Souter: Well, this just goes back to Justice Ginsburg's question. Why not? Isn't that what we usually do, and if so, why don't we do it here?
R. Napier Murphy: --Your Honor, the reason we don't do that here, number 1, in this case we are looking at a single-member district itself, which is the basic political unit. We're not looking at a multimember structure here. We're looking at a single-member district.
Ruth Bader Ginsburg: But you conceded that if you went... if you had a system of five, and you went to a system of one, even though it was only one, there might be a section 2 claim of voter dilution.
R. Napier Murphy: If minority voting strength is diluted. By the same--
Ruth Bader Ginsburg: Even though you end up with one, and you conceded that you... the test of the "if" is to compare what was to what is, and so we're now back... since you can make some comparison, why can't you compare what will be?
R. Napier Murphy: --Because I think we're talking about two separate events here. Simply because you might be prevented from going from five to one doesn't mean that if you already have one in place, the court can require you to go to five. The proviso in section 2 is that it is not designed to ensure proportional representation. If you have 25, and you reduce to 5, and you dilute minority voting strength, that would be a section 5 violation. That doesn't mean, on the other hand, that you... the court can take 5 and require a county to go to 25 in order to assure an Asian district, a Hispanic district, or a black district, simply because--
Ruth Bader Ginsburg: How many counties are left that have this system? It's dwindling, isn't it?
R. Napier Murphy: --I believe it's 14.
Ruth Bader Ginsburg: Fourteen are left, and is it so that Georgia's the only State that has a single commissioner?
R. Napier Murphy: Yes, Your Honor.
Ruth Bader Ginsburg: How many have recently changed, do you know, from--
R. Napier Murphy: I think from the time we filed the petition until today, five have changed, either by settlement of voting rights litigation or by county election to change.
John Paul Stevens: --May I ask another, sort of more basic... let's assume you have a history with just one commissioner, as you have, you never had anything else, but assume that... and contrary to the facts in this case, assume that there was overwhelming evidence that the reason that they had maintained the single-member district, or single commissioner form of government, was to prevent the black voters from having an opportunity to elect a representative. Just say there's abundant evidence of intent, and that's why they lost the last election when they tried to change it, and so forth and so on. Would that be a violation, or not?
R. Napier Murphy: Your Honor, that hypothetical question probably would go more toward a constitutional claim than it would a section 2 claim.
John Paul Stevens: Oh, I understand it might violate the Constitution. I'm asking if it violates section 2 of the Voting Rights Act.
R. Napier Murphy: Section 2 of the Voting Rights Act does not address difficulty to elect. It addresses an equal opportunity--
John Paul Stevens: It seems to me that you could tell me in very short... two different words, yes or no, probably, I'd find out what your position was.
R. Napier Murphy: --If you can prove that during the time that this sole commissioner--
John Paul Stevens: Prove it from 1865 to today. They had this government for that very reason and no other reason, and that was the purpose of doing it. Section 2 violation, or not?
R. Napier Murphy: --Yes, but that is not our argument here. Our argument is that you--
John Paul Stevens: Your answer is yes, that would be a violation.
R. Napier Murphy: --By virtue of the method of electing. I'm not saying that simply because you have a sole commissioner you are violating section 2.
John Paul Stevens: No, I understand, but you do seem to be willing to acknowledge that if it were motivated solely by racial animus and discriminatory intent and all the invidious language we can put into it, that situation would constitute a violation of section 2.
R. Napier Murphy: Your Honor--
John Paul Stevens: If you also prove the three Gingles factors.
R. Napier Murphy: --If you also prove the three Gingles factors.
John Paul Stevens: Sure, you have to prove those.
R. Napier Murphy: Which is my argument exactly, in this--
Antonin Scalia: Which is impossible, you say.
R. Napier Murphy: --It is impossible--
Antonin Scalia: So therefore, it would not be a violation of section 2--
R. Napier Murphy: --Simply because it exists--
Antonin Scalia: --Right? Isn't that your position?
R. Napier Murphy: --it is not diluted.
Antonin Scalia: So why don't you say it would not be a violation? It's perfectly awful, it's horrible, there may be a constitutional remedy, but it's not a violation of section 2. Isn't that your position? Otherwise, I haven't understood your briefs.
R. Napier Murphy: Yes, sir, that is our position. Having one person elected from one jurisdiction would not violate section 2 of the Voting Rights Act.
John Paul Stevens: Even with the kind of intent I've described.
R. Napier Murphy: Yes.
John Paul Stevens: You've changed... Justice Scalia has persuaded you to change your position. [Laughter] That's correct, isn't it?
R. Napier Murphy: I have changed my answer, yes.
John Paul Stevens: You did make that concession before you had a little help.
R. Napier Murphy: Yes, sir.
Ruth Bader Ginsburg: Not... if you've always had it, it can never be a violation, but if you changed to get a one-member district, then you could have a violation.
R. Napier Murphy: The change could be a violation. Simply having a one-member district is not a violation, but I agree that changing, if you have intent, could be a violation.
David H. Souter: Well, how can you satisfy the Gingles factors after a change but not be able to satisfy the Gingles factors before a change?
R. Napier Murphy: I think--
David H. Souter: One-member district, same factors. What's the difference?
R. Napier Murphy: --Okay, because in our case there has not been a change, number 1, and number 2--
David H. Souter: No, but that... that doesn't respond to the question. I thought you said you can never satisfy the Gingles factors when you're dealing with a dilution claim on a single-member district, and you just said yes, you can do that if there's been a change to a single-member district, and I don't see why that's consistent with your position that Gingles can never be satisfied in single-member cases.
R. Napier Murphy: --Well, Gingles... Gingles' three preconditions require that you have compactness and numerosity in a single-member district, that you have political cohesion, and racial polarization--
David H. Souter: Okay--
R. Napier Murphy: --both.
David H. Souter: --can you satisfy that first factor in a single-member district which is new, as opposed to one which is old?
R. Napier Murphy: You cannot satisfy that in an existing single-member district. All you--
David H. Souter: Why can you satisfy it in a new single-member district? What's the difference?
R. Napier Murphy: --Well, the difference is because you have made a change. You have made a change. Simply because there might be a violation because of a change--
David H. Souter: Well, the change may... the change may go to your intent. The change may go to the measurement of the dilution which you make after the Gingles factors are satisfied, but I don't see what it's got to do with the question whether you can satisfy the factors, and in particular the first one, any better or any worse whether it's a new single-member district or an old single-member district.
R. Napier Murphy: --If you have one person... I agree with you, judge, if you are looking at either a new or an--
David H. Souter: Well, if you agree with me, then don't you also have to go back to your concession that there can be the possibility of a dilution claim in an existing single-member district? Don't you have to go back to your first answer to Justice Stevens?
R. Napier Murphy: --No, sir, because I'm looking at this as an intent to discriminate when you make a change.
David H. Souter: Yeah, but the intent to discriminate is not the essence of section 2. This isn't a Fourteenth Amendment claim.
R. Napier Murphy: That's correct. The question here is whether the courts should take an existing single-member district or a commission of three or a commission of five and judge that by an assumed model, which is what the Eleventh Circuit has done here.
David H. Souter: Well, you may have a very different... I mean, you do, it seems to me, have a very different argument when you in effect say, well, where are you going to stop, are you going to impose a 100-member commission, and so on and on, but that's a very different argument.
R. Napier Murphy: There are no workable standards if... regardless of whether you have one or three or five, if courts start coming in and trying to determine a vote dilution not by the existing model but by some assumed commission of--
Ruth Bader Ginsburg: But it's not some assumed, and I think the concession is made that you just couldn't pick a number that would happen to give you proportional representation. The number that has been picked here that's allegedly the benchmark is the most frequent form, the five-member commission, so it's not just a number that is pulled out of a hat.
R. Napier Murphy: --The sole county commissioner form in Georgia is the third most popular form in Georgia. It's true that five is the most common form, but that doesn't mean that it's the only form or the--
Ruth Bader Ginsburg: But at least it's an answer to your argument that where do you stop? I mean, you can have 20 members, just as long as you come up with the number that happens to give you a representative.
R. Napier Murphy: --Well, assume that we have a commission of 10 members, should the... and that's the situation in Clarke County, Georgia. Should we be required to go up to 25 in order to assure a certain number--
Ruth Bader Ginsburg: I think the answer is the only position taken in this case is that where you have what they call benchmarks, five or three, that you could use those, not that you could use anything other than those, but that you must have solid precedent for those.
R. Napier Murphy: --Your Honor, I disagree that that is a benchmark in Georgia. There are counties with all different sizes. It's a question of local and State interest in determining the size, because every county is different. They have different geographies, different ideologies, different needs, and simply because most counties have five doesn't mean that the citizens in one county or another must have five or must have three simply because that's the most popular form.
Ruth Bader Ginsburg: When the State proposed changing this single commissioner system for this county, they did propose... wasn't it a five-member board that was proposed--
R. Napier Murphy: Yes, Your Honor.
Ruth Bader Ginsburg: --was it '85 or '86?
R. Napier Murphy: Five plus one at large. It was a referendum. The General Assembly passed legislation authorizing a referendum to go to a six-member commission, five from districts and one at large. There was very little interest in the black community in that referendum. It was a tax issue. There had been an ad valorem tax change in the county by the commissioner, voters were unhappy with it, the referendum was held whether to change the commission, and the voters in the county, only 25 percent of whom voted, voted in favor of keeping their sole commissioner. In School Board District Number 2, which is the majority black school board district, the measure passed by only 2 votes, and there was very little organized interest in the black community at all in that referendum.
Ruth Bader Ginsburg: Were those... those were not... were they at the same time, the school board and the commissioner?
R. Napier Murphy: No, Your Honor. Four years earlier, the county had decided to go to five single-member districts for the school board, so it's not a question of whether the county is racist or polarized. The county voters decided they preferred five single-member districts for the school board. As far as their county governing authority is concerned, one is what the citizens there prefer.
Ruth Bader Ginsburg: Who pays the county commissioners?
R. Napier Murphy: The county commissioner is paid by taxpayers. He has regular office hours in the Bleckley County Courthouse, he conducts regular monthly meetings, if he has to make a policy decision he advertises it in the local newspaper, he makes $32,500 a year, and it's--
Ruth Bader Ginsburg: Have you made the argument that it would cost more to have a five-member commission?
R. Napier Murphy: --Yes. That is the reason... that is the primary reason local voters like what they have. If you need your roads scraped, if you need anything that the county commissioner has authority to do, you walk into his office, and you talk to him about it. It is a very efficient, economical, workable system, and he's immediately responsive to the voters.
John Paul Stevens: How is his salary determined? Is that fixed by State law, or--
R. Napier Murphy: Yes.
John Paul Stevens: --It is. In these five-member commission districts, are the salaries of the commissioners fixed by State law, too.
R. Napier Murphy: They would be, yes.
John Paul Stevens: They would.
R. Napier Murphy: Yes.
John Paul Stevens: And would it cost the county five times as much to have five commissioners instead of one, or are they a lesser salary because they only have legislative duties?
R. Napier Murphy: If they were only part-time, which I assume they would be, then they would make less money, but then the county would be required to hire a county administrator to manage the day-to-day functions of the office.
John Paul Stevens: I'm just wondering if your financial concern might be met by hiring your one administrator to do most of the work and then have these five commissioners on a part-time, low-salaried basis. All you'd have is the small amount of additional salary for the part-time.
R. Napier Murphy: It might be met, Your Honor, but the point I want to make here is that the single county commissioner is what the government... the local citizens in that body desired. Simply because there's one person to fill that office doesn't make it magical. The question here is whether, under the Gingles test, the court has the authority or should take on the responsibility--
John Paul Stevens: Would you take the same position if the evidence showed that it wouldn't cost a penny more, you'd get volunteers, and there wouldn't be any interference with the efficiency of the government, it's just an absolute rule regardless of how trivial the State justification might be?
R. Napier Murphy: --I would take the same position that the existing single-member form of government in Bleckley County--
John Paul Stevens: Is outside the coverage of the act.
R. Napier Murphy: --Is not subject to challenge as dilutive--
John Paul Stevens: As dilutive, right.
R. Napier Murphy: --of minority voting strength, and I would like to reserve the remainder of my time, please.
William H. Rehnquist: Very well, Mr. Murphy. Mr. Coates, we'll hear now from you.
Christopher Coates: Mr. Chief Justice and may it please the Court: The district court judge, after he heard all of the evidence in this case, announced from the bench that having run for public office himself, I guarantee you under these circumstances I wouldn't run if I were black in Bleckley County. You're going to put your hard-earned time and shoe leather campaigning through this county under these circumstances. The court of appeals found that voting in Bleckley County is along racial lines. At present, the only polling place in this county, which consists of 219 square miles, is an all-white private club. Between 1978 and 1986, 224 persons were appointed to serve as poll managers in Bleckley County, and not one of the 224 appointees were black persons.
Antonin Scalia: Do you think perhaps the same statement could have been made at least 20 years ago with respect to the President of the United States... if I were a black person, I wouldn't run for President of the United States?
Christopher Coates: Yes, sir.
Antonin Scalia: Because you don't stand a chance of getting elected?
Christopher Coates: Yes, sir.
Antonin Scalia: And does that render that unlawful?
Christopher Coates: No, sir.
Antonin Scalia: That system of government, one elected President?
Christopher Coates: No, sir, because the President of the United States has traditionally been a true single-member office in this country. He's a member of the executive branch. There must be one decisionmaker as President of the United States. The governing body that we're talking about here today is a body, the Bleckley County Commission, that carries out legislative functions as well as executive functions.
Antonin Scalia: What about the governorship of some States? If you could make the same statement about the governorship, do you think that would be a violation of the Voting Rights Act?
Christopher Coates: No, sir, because I think, again, the governorship of the State is a true, single-member office.
Antonin Scalia: This is not a statute that talks about intent. I don't see how whether it's a true single-member or non-single-member has anything to do with it. There's nothing like that in the statute.
Christopher Coates: Well, the courts--
Antonin Scalia: I mean, you know, when we say, it's not a true single-member, that implies, you know, this has been done... made a single-member with the intent of disadvantaging blacks, but this is not an intent statute.
Christopher Coates: --Well, section 2--
Antonin Scalia: It just looks to the consequence, whatever the intent was, doesn't it?
Christopher Coates: --No, sir. Section 2 has both an intent and result component.
Antonin Scalia: What is the intent component? Which one is that?
Christopher Coates: Section 2 has been construed to prohibit racially motivated voting procedures, which would be the same as prohibited by the Fourteenth Amendment.
Antonin Scalia: It requires intent.
Christopher Coates: No, sir, it does not. It has a double standard.
Antonin Scalia: Then my question stands. You don't need intent to make it invalid, so why would it make any difference whether this was a natural one-person district or not a natural one? The only thing that goes to show is that somebody had a bad intent, but you don't need a bad intent to show a violation here.
Christopher Coates: Yes, sir. I think that... Your Honor, the response to that question would be that one would have to look at what the Congress was intending to prohibit or to address enacting section 2 in 1982, and if you look--
Sandra Day O'Connor: Well, do you think that Congress really did intend in section 2 to authorize dilution claims to the various single-member offices found around the country--
Christopher Coates: --My position--
Sandra Day O'Connor: --County sheriff, county treasurer, county attorney, so forth and so on?
Christopher Coates: --No, I do not. I do not think if it's a true single-member office that carries out legislative functions... it carries out executive functions and not legislative functions, that I think the Congress did not intend to reach those offices.
Sandra Day O'Connor: But it certainly didn't in language in the statute draw a legislative or executive distinction, did it?
Christopher Coates: That's correct, Your Honor, but looking at the legislative history, the principal problem that the Congress was addressing in enacting the Voting Rights Act was the dilution of minority voting strength at the legislative body process, and I think that that's the distinction that should be drawn here with regards to true single-member offices and legislative offices--
Antonin Scalia: The statute doesn't apply to executive offices, is that it? Section 2 does not address executive offices?
Christopher Coates: --It does... there was not an intent by Congress in enacting the statute to increase... to allow section 2 plaintiffs to increase the number of true... true single-member offices.
Antonin Scalia: You're talking about truly executive... I've spent much of my life in administrative law trying to figure out what's executive and what's legislative, but you very clearly see that some things are truly executive and other things truly legislative.
Christopher Coates: Yes, sir.
Antonin Scalia: This is truly legislative, this particular office.
Christopher Coates: The Bleckley County Commission--
Antonin Scalia: Right.
Christopher Coates: --is both... has all the legislative powers of the governing authority in Bleckley County as well as the executive powers, but a test can--
Antonin Scalia: What about Federal agencies that can issue regulations? Are they executive agencies, or not?
Christopher Coates: --They... my understanding would be that they would be executive agencies.
Antonin Scalia: Even though they can make all sorts of rules just the way this county commission can.
Christopher Coates: But they would not be legislative bodies.
Antonin Scalia: Why?
Christopher Coates: Because they do not have the power to govern in the sense of passing ordinances that a local--
Antonin Scalia: They pass regulations. It's the same things as ordinances. You violate them, you go to jail.
Christopher Coates: --Yes, sir. Well, in the traditional sense, they do not have the authority to legislatively enact laws or ordinances that a county commissioner or a city council or a general assembly of a State would.
William H. Rehnquist: Well, you mean they're not responsible to... directly responsible to an electorate.
Christopher Coates: That's another distinction, Your Honor.
David H. Souter: Well, do you really have to rest your case on this distinction? Why... I thought your argument rested at least equally well and, I guess I would suggest maybe more strongly, on your reference to tradition in effect as a source of benchmark, and if you do that, you don't have to get wrapped up in the question of whether someone is performing executive or legislative function, you in effect look to some historical basis, if you can find one, for your benchmark.
Christopher Coates: Yes, sir. Well, your benchmark goes to the question that was raised by the county here concerning how and to what limit there would be a limitation on the expansion of representatives on the local government body.
David H. Souter: No, I realize that, but doesn't it equally address the question whether the office in issue is one which may be subject to a section 2 claim if it is, as in this particular case, a single-member office?
Christopher Coates: I think the benchmark test would go to that question, and you would look to tradition in this country of having a distinction between legislative offices, which are normally multimember boards, and executive offices, which are normally true, single-member offices.
David H. Souter: Why do you have to get executive and legislative in there at all? Why don't you just look to the number of the office?
Christopher Coates: Yes, sir. Well, in response to the question by Justice Scalia, I was responding in that manner, but the benchmark that... that--
David H. Souter: Do you concede that it is essential to make a legislative executive distinction in order to support your position in this case?
Christopher Coates: --Not for this particular case, but in response to his question I was answering it in that way.
William H. Rehnquist: Mr. Coates, you said, I thought, in response to Justice Souter's question that you look all around the country for a benchmark so that even if all of the 250 or whatever it is counties they have in Georgia all had single commissioners, you might find a benchmark out in the State of Oregon, say, where perhaps they all had... the counties had five-member commissions?
Christopher Coates: No, sir. I think that the first place you would look to a benchmark would be to the State, because that would determine the State's policy.
William H. Rehnquist: So if you found all single commissioners in Georgia, could you look any further?
Christopher Coates: I think that that would be a much more difficult case, because if Georgia had a statute that provided that every county would have a sole commissioner, then there would be a strong argument in this case that the State policy required the sole-commissioner form of government, but I thought--
William H. Rehnquist: It wouldn't be conclusive?
Christopher Coates: --It would not be... I think it would be a much more difficult case. Whether or not some counsel could construct an argument that would say that you could look to Oregon, I just don't know, but in this case 159 counties exist in Georgia. Only... my count's a little bit different... 11 counties have the sole commissioner form.
William H. Rehnquist: I was thinking of Texas, I think.
Christopher Coates: Yes, sir. There are only 11 counties in Georgia that have a sole commissioner form of government.
Ruth Bader Ginsburg: It's 11... the number's 11, not 14?
Christopher Coates: Yes, ma'am, I think it is.
Ruth Bader Ginsburg: The district court went with you, as I understand it, the first two steps of the way. Where the district court and the court of appeals divided was on what has been called the second two Gingles factors. Would you explain on what basis you think that your case meets those second two requirements, the cohesiveness on the part of the minority community and the bloc voting on the part of the majority community?
Christopher Coates: Well, the court of appeals held that the analysis applied to the issue of racial bloc voting by the district court judge was too narrow. The district court held that in making that analysis, or determination, that he was limited to statistical analysis in determining the existence or nonexistence of racial bloc voting. The court of appeals held that you could look to other, antidotal evidence in the case that addressed the issue of racial polarization, such as the fact that when black people go to vote in Bleckley County, that there would be in an 8-year period 224 black... white managers and no black managers, for example. The court of appeals said that one could look at--
Ruth Bader Ginsburg: Well, you wouldn't have to look at anything other than if you had a minority population that would always be the case. Then no single-member system would be permissible. There was no proof of any kind with respect to the division of the votes at the time of the referendum minority-majority votes for and against, was there?
Christopher Coates: --That's correct, because in 1986, the eight existing precincts that existed in 1984 had been consolidated into one precinct, and under a one-precinct situation regression analysis is not possible because you need at least two or more precincts to compare to do the regression analysis, so it was not a possibility for the plaintiffs in this case to offer a statistical showing concerning the 1986 referendum. But the court of appeals pointed to footnote 25 of this Court's opinion in the Gingles case and read that footnote to say that the district court was incorrect in ruling that you looked at only statistical evidence, and allowed a broader look, and on that basis came to the conclusion that the district court had erred. What is the broader look, other than that when you have a unit that has a majority population and a minority population, the chances are that you will have a representative from the majority group? The broader look was the continuing racial segregation and polarization within the county which created an impediment for black candidates to solicit white voters, or for black voters to form coalitions with white voters, and that continuing polarization was evidence sufficient in addition to the statistical evidence that the plaintiffs offered to satisfy the racial polarization requirement in Gingles. The court--
Anthony M. Kennedy: If you have a jurisdiction in which, say, there are four races, and one race is 10 percent, and that race has had difficulty in electing its representative, I take it under your principle we would have to go to proportional representation and have, say, a 10-person commission?
Christopher Coates: --No, sir. First of all, our position is that the increase in the number of representatives on the governing authority would first be determined by looking at the State law benchmark, and the State law benchmark in this case I believe is 5, it would not be 10. Secondarily, this court held in 1972, in the Beens case... I think it's Sixty-seventh Minnesota v. Beens... that minor deviations are allowed from the State choice concerning the number of representatives. If the deviation from the State benchmark were more than minor, then Beens would tend to teach that that alteration would not be allowed.
Anthony M. Kennedy: Well, let me put it this way. If there were a benchmark that permitted a governing body of a size which would give proportional representation to the excluded race, then it is your position that they would have to reconform the district accordingly, is it not, in the case that I put?
Christopher Coates: It might be, but the--
Anthony M. Kennedy: So basically what you have is proportional representation in every case.
Christopher Coates: --No, sir. No, because the increase there, Your Honor, would be not because of the claim of proportional representation, but because the expansion would be tied to the benchmark established by State law, as is the case here.
Anthony M. Kennedy: But what is the objective? The objective is to allow racial representation.
Christopher Coates: No, sir. The... in this case, I would respectfully beg to differ. The court did not say... the court of appeals did not say, in suggesting the use of the five single-member district plan, that that was done to effectuate proportional representation. It chose the five single-member district plan because it would have been choosing an alternative system which was established by a benchmark of State policy.
Antonin Scalia: Which came the closest to giving proportional representation.
Christopher Coates: It had that incidental effect, yes, sir.
Anthony M. Kennedy: Incidental? That was the whole object of it, wasn't it? Well, let me ask you this... let me ask you this: suppose the... we affirm the finding that there should be a five-member district. Those districts would have to be drawn on a race-conscious basis to comply with your theory, would they not?
Christopher Coates: The... if the plan was drawn as the board of education... if the board of education plan was adopted, then I do not think it would be fair to say that that would be drawn on strictly a race-conscious basis, because that is the very plan adopted by the Georgia General Assembly in 1983 for school board elections, so what the court of appeals was suggesting--
Anthony M. Kennedy: Suppose there were no... suppose there were no existing precincts, and this case goes back, is race a factor in drawing the new district lines?
Christopher Coates: --Yes, sir.
Anthony M. Kennedy: It has to be, doesn't it, so there can be proportional representation?
Christopher Coates: No, it does not have to be because of proportional representation. It would have to be because of the finding of vote dilution, Your Honor, is affirmed by this Court, then the district court, in determining the remedy, would have the responsibility of implementing a plan that would cure the vote dilution effect. That would be the general standard.
Antonin Scalia: Mr. Coates, we said in Chisom v. Roemer... and I didn't agree with our saying it, but we said it, and maybe we said it in order to get around this problem of converting section 2 against its plain text into a provision that provides proportional representation. We said that you have to show two things, not just inability to elect, but you have to show, in addition, lack of opportunity, equal opportunity to participate. In other words, we read the two clauses of section 2 as being cumulative. Now, has there... what lack of equal opportunity to participate does there exist in this situation?
Christopher Coates: To--
Antonin Scalia: Doesn't everybody in the county, when voting for this one member, participate in the electoral process equally?
Christopher Coates: --No, sir.
Antonin Scalia: No?
Christopher Coates: No, sir, and a system--
Antonin Scalia: I can understand how you say they can't elect by race with this much facility, but how do they participate unequally?
Christopher Coates: --Yes, they do not participate equally, black and white people in Bleckley County, because the fact that there would be 224 people appointed as poll managers over a 8-year period and not one of those people would be black, would show that participation in the voting process in this county is manifestly not equal. Black people have to go to the polls, but they are run by white people. There was testimony in the case that that deterred some black people from voting. They have to go to the polls and vote in an all-white private club. That's not equal participation.
Antonin Scalia: Do they have the same ballot?
Christopher Coates: Yes, sir, they do.
Antonin Scalia: They vote for the same people.
Christopher Coates: Yes, sir.
Antonin Scalia: They're not excluded from the polls, nobody excludes them from the polls.
Christopher Coates: The choice of having all-white managers--
Antonin Scalia: You're saying that they cannot elect a member of their own race and that affects the outcome, but that's the elect provision, not the participate provision.
Christopher Coates: --Yes, sir. Well, the Congress said in section 2, and it's right in the face of the statute, that the failure of a minority group member to be elected is one factor to be taken into consideration in deciding whether the system is vote-dilutive. There are many cases that come to this Court, such as Gingles, where there has been some success by minority candidates. In this case, on a county-wide basis since 1912, there has been zero success.
Ruth Bader Ginsburg: If the minority population were 12 percent, you would have no case, is that... are you recognizing that?
Christopher Coates: If the--
Ruth Bader Ginsburg: Suppose, instead of being close to 20, it was 12 percent.
Christopher Coates: --If the benchmark for testing the sufficiency and size requirement were 5, as we maintain it is in this case, then if the minority population were 12, that would create severe problems for satisfying the size and compactness requirement of Gingles. I haven't done that mathematically, I haven't done that hypothetical, Your Honor, but I would concede that it would create a problem in satisfying the sufficiency and size requirement under the benchmark--
Anthony M. Kennedy: These practices of having all white commissioners, or poll-watchers, can that not be challenged separately under section 2, or under the Fourteenth Amendment?
Christopher Coates: --Yes, sir, and I have filed such a suit.
David H. Souter: If we were to change the facts that you've given us, and if the county had been from your standpoint perhaps more prudent, and had been careful to appoint a racial mixture among its poll-watchers, and if it had set up polling places in public schools, and so on, are you conceding that you would not have a case?
Christopher Coates: No, sir, I would not concede that I wouldn't have a case, but certainly that would take away the antidotal evidence, the nonstatistical evidence of racial polarization that the court of appeals pointed to.
David H. Souter: And you would be left simply with the... you would be left simply with the fact, under those circumstances, that there had never been a black commissioner.
Christopher Coates: Well, I wouldn't be left with just that fact. For example, there was a--
David H. Souter: What else would you have?
Christopher Coates: --Well, for example, there was a finding by the district court, affirmed by the court of appeals, that black people in Bleckley County continue to suffer from the effects of racial discrimination in housing and employment and areas like that, and that--
David H. Souter: Well, what's that got to do with participation?
Christopher Coates: --Because--
David H. Souter: Under section 2?
Christopher Coates: --Because that's one of the factors that the Senate report pointed to as bearing upon the question of equal participation, and both the district court, I think, importantly, and the court of appeals, found that that present depressed socioeconomic status hindered the ability... and this is what the district court said, even though that judge ruled against us... hindered the ability of black people to vote and run for office. Only 15 percent of the black people in Bleckley County have high school educations in a system--
Ruth Bader Ginsburg: Mr. Coates, could you have another referendum? The State proposed it in '85-'86, and it seemed that there wasn't much of an interest in either community in voting in that referendum, but if the preference, the strong minority preference is for a five-member commission, could you have another referendum?
Christopher Coates: --If the Georgia General Assembly authorized the holding of another referendum, yes, you could, Your Honor.
Ruth Bader Ginsburg: Do you have any information in this record about what happened in the other counties, now we've got this number that's now dwindled to 11, and they went from one to a larger number?
Christopher Coates: Yes. Yes, Your Honor. There's a... in the appendix, there have been the consent orders in some of the cases which have been settled. For example, in Webster County there was a sole commissioner, there was an expansion to a three-member commission elected from single-member districts, and an at-large commissioner who would serve as the county administrative official, so that's how in one of the counties the problem has been resolved. There has... there's no evidence that in any of these counties have the cases been resolved on the basis of expanding the membership of a sole commissioner to 50 or 100 commissioners.
Anthony M. Kennedy: Suppose that throughout Georgia the choice were between having either a one-commissioner system or a three-commissioner system, and suppose further that in Bleckley County the increment from one to three would not result in the election of any representatives of the black community. What then would be your position as to the appropriate remedy? Could the court then order five?
Christopher Coates: That would be a much more difficult case, because there would be a policy, a State policy applied across the board to counties that would establish either a one-person commission or a three-person commission.
Anthony M. Kennedy: But if it's necessary to cure a violation, how can a State policy thwart a Federal statute?
Christopher Coates: Because in determining the benchmark for the increase, I believe that it would be appropriate for the Federal courts to give deference to the State policy established in that benchmark. The Federal courts would not be at liberty to just create numbers so as to achieve some type of proportional representation, but they... but the--
Antonin Scalia: But not... could not give deference to the county policy. I mean, you're willing to have us override the county voters, who want one, even though the State wants to defer to those county voters--
Christopher Coates: --Yes.
Antonin Scalia: --But somehow we can't override the State, just the county, is that it?
Christopher Coates: That's correct, Your Honor, because--
Antonin Scalia: I see. Is there some principle of law that--
Christopher Coates: --Yes, sir. It is mentioned in the legislative history of section 2, where it says that in determining whether or not a State's policy is tenuous, you look to how the State has treated other jurisdictions in a State. The State policy is not established by what happens in Bleckley County. The State policy is established by comparing how Bleckley County is treated with other counties in the State.
Sandra Day O'Connor: --Well, Mr. Coates, I don't find anything, actually, in section 2 that says you defer to State policy. If you find vote dilution then there's a violation and a Federal remedy is required.
Christopher Coates: The only place that it is referred to is not in the face of the statute, but in the seven Senate factors. The tenuousness of the State policy is--
Sandra Day O'Connor: In looking at the totality of the circumstances to determine the dilution question, right?
Christopher Coates: --Yes, ma'am. That would be one of the factors that a court would appropriately look at.
Sandra Day O'Connor: But if dilution is found, then I suppose a remedy is required.
Christopher Coates: Yes. The only analysis that I'm saying, or presenting to the Court, is that the Federal court would not be permitted to completely disregard the State's policy, but that's not what happened in this case.
Sandra Day O'Connor: Now, it's a little hard to read the limiting principle into the language of the statute.
Christopher Coates: Yes, ma'am.
David H. Souter: Well, isn't it the nub of your argument that dilution is in effect a question involving comparisons, and what the appropriate comparison may be, you assume, Congress intended to be established by looking to traditional practice within a State?
Christopher Coates: Yes, sir.
David H. Souter: Is that--
Christopher Coates: That's correct, a State practice establishes the benchmark, and it would be a different case--
David H. Souter: --So ultimately you're saying, what is an appropriate comparison is a question of congressional intent, and congressional intent was, look to what they have been doing within the State for other possible, reasonable comparisons.
Christopher Coates: --That's correct, because I think section 2 shows that there's a demonstrated Federal interest to cure the problem of vote dilution in the United States. I mean, it's Nationwide, and so if there's vote dilution found, and there's a Federal interest in correcting that, then if you're going to give some special weight to the State's interest, it at least ought to be an interest that has been applied by the State in some type of systematic manner, not--
Antonin Scalia: You talk about vote dilution as though it's something objective, but you've told us it isn't objective, that there's no such thing as vote dilution if you've had a single-member office all along. That isn't vote dilution, even though the same system set up somewhere else is vote dilution if... I don't now, if it hasn't been a uniform State policy.
Christopher Coates: --If I said there--
Antonin Scalia: I don't know what vote dilution means. It's a meaningless term. It's entirely relative, isn't it?
Christopher Coates: --Well, if I said that there wasn't vote dilution under the single commissioner form in Bleckley County, I did not intend to say that.
Antonin Scalia: No, no, but you said in another State there wouldn't be. If another State had all single-member people, that wouldn't be vote dilution, even though the votes would be diluted to the same degree, but that wouldn't be "vote dilution" as you've been talking about, isn't that right?
Christopher Coates: It would depend upon the particular circumstances or evidence in that particular jurisdiction. Thank you, Your Honor.
William H. Rehnquist: Thank you, Mr. Coates. Mr. Murphy, you have 3 minutes remaining.
R. Napier Murphy: Thank you, Mr. Chief Justice, and may it please the Court: We have a county of 10,000 people. 70 percent of the registered voters, black and white, are registered. Voter registration is equal for both blacks and whites. They vote equally in all elections, the same percentages... 29 to 30 to 31 percent. It's the same. They have an equal opportunity to participate in that county, whether they are voting for one sole commissioner, one sheriff, or one school board district member. We're not talking about benchmarking in order to prove a section 2 claim. We're talking about bootstrapping. In these other counties that went from one to three... one to three... why didn't they go one to five? Because three guaranteed proportional representation. If five is the benchmark, these other sole commissioner counties that have decided to change should have gone to five. If we're talking about benchmarking, should the Texas legislature, which has only 31 members, be expanded to meet the modal size of State legislatures in this country? There are no workable limits if we start changing or expanding the size of government to determine a vote dilution claim. You look at the existing number of seats. This Court refused, in the Beens case referred to by Mr. Coates, to order a reduction of 50 percent in the State Senate of Minnesota and 25 percent in the House of Representatives. This Court refused that change even for a constitutional violation. We are talking about a 500-percent change in the size of the governing body for this small county. That is not a minor change. Mr. Coates also referred to sheriffs as having executive authority, but sheriffs make many decisions which affect minorities. Hiring minority deputies, enforcing the laws as to minorities, providing patrols for minority neighborhoods... all of those actions affect minority voters. You cannot--
Ruth Bader Ginsburg: Mr. Murphy, if we were to look at the district court decision and go that far, reject your argument as far as the district court did, what would your argument be about what it would take to satisfy the factors that the court of appeals found were not satisfied in this case, the bloc voting and cohesiveness? Let's say that you lose on your main argument, and we're back in the district court, and the district court says, in my view, this case fails for lack of proof on those two items, what would be adequate proof?
R. Napier Murphy: --Adequate proof of political cohesion would be proof that minorities get together to sponsor candidates, that they run a candidate. No minority has ever run for any county-wide office in the 81-year history with the exception of one election for a probate judge in 1984, but as long as no minority runs for office in that county, then it's certain that no minority will win election.
William H. Rehnquist: Thank you, Mr. Murphy.
R. Napier Murphy: Thank you very much.
William H. Rehnquist: The case is submitted.


Warren E. Burger: We will hear arguments next in 78-873, Board of Education of New York v. Harris, the Secretary of HEW. Mr. Bruno, I think you may proceed whenever you are ready.
Joseph F. Bruno: Mr. Chief Justice, and may it please the Court. My name is Joseph Bruno, and I am Assistant Corporation Counsel of the City of New York. I represent the petitioner, the Board of Education of the City School District of the City of New York. This case presents this Court the issue of the proper test of discrimination under a federal grant statute known as the Emergency School Aid Act as well as the proper test of discrimination under Title VI of the 1964 Civil Rights Act, as well as interrelationship between ESAA and Title VI. It is the position of HEW and the Second Circuit Court of Appeals that the test of discrimination under both ESAA and Title VI is a disparate impact test. The Board's position is that under ESAA and Title VI, the test of discrimination is a constitutional intent test. A bit about the facts. The ESAA statute sets up a competition in this country among school districts who seek to apply for a limited pool of ESAA funds of approximately $1.5 billion. Proposals are submitted to HEW for grading on programmatic merits and a program would be funded if it came within the range of programmatic merits except if it was found to be ineligible under the provisions of section 1605(d)(1) of the ESAA statute. Suffice to say that the Board of Education submitted a proposal, was found to have sufficient programmatic merit, was denied funding under section 1605(d)(1)(B) when HEW found that certain of the New York City high schools were racially identifiable based upon staff assignments.
William H. Rehnquist: Counsel, is 1605(d)(1)(B), the statute you question, does that involve the proposal submitted for funds or does it involve the practice, the existing practices of the school board submitting them?
Joseph F. Bruno: It involves the existing practice. It was a basis for finding ineligibility. That is the ineligibility section of the ESAA statute. It does not relate to the individual proposals. The proposals are apart from it. This is a basis upon ineligibility. It talks about current practices or activities. The finding of ineligibility was based essentially on a statistical report done by HEW in relation to a 1976 OCR non-compliance letter. The validity of that determination of ineligibility was the subject of at least two reviews at HEW, was conceded by the District Court for the Eastern District of New York before Judge Jack B. Weinstein, and appealed to the Second Circuit. Now, the circuit held that ESAA itself requires application of an impact test in determining eligibility for funding on the issue of staff assignments. The Court of Appeals also held that Title VI incorporates an impact test and therefore that the staff assignment policy of the Board also violated Title VI. Let me deal first with the ESAA statute. The subdivision I have indicated is section 1605(d)(1)(B). It states "No educational agency shall be eligible for assistance under this chapter if it has as of June 23, 1972, it has had or maintained in effect any other practice, policy, or procedure which results in district apportion the demotion or dismissal of instructional or other staff, minority staff in conjunction with a desegregation plan" --
Warren E. Burger: How do you get away from the language "which results"?
Joseph F. Bruno: We do not, and we concede with respect to demotions and dismissal--the issue in this case is assignment of staff -- with respect to demotions and dismissals, we concede that is a disparate impact test for a very clear rationale. With respect to the assignment of staff, however, the language is "otherwise engage in discrimination." Based on race color and national origin in the assignment of staff which is the issue in this case we can see that the motion to dismissals to is in despaired impact test for a very clear rational and congress so stated, I will get to a virtue of it with respect to assignment of staff however the languages are otherwise in case of discrimination. HEW contends that this language of the statute makes it obvious that the test applicable, which we concede is the disparate impact to the motion to dismissal, is the same test that should be applicable to the assignment of staff. I would submit that the Congress used very different terms when it dealt with demotions and dismissals as opposed to assignment of staff. I would also note that in this section 1605(d)(1) which is the entire ineligibility section here, five activities that render a board ineligible, within this section it uses discrimination twice. It uses it in subdivision (d) which deals with avoidance of minority group participation in curricular or extracurricular activities so as to discriminate against them -- that is the other place that it is used. HEW concedes that there that is an intent test. We say that if Congress knew what it was talking about with subdivision (d) it certainly knew what it was talking about with respect to subdivision (b) dealing with staff assignments. HEW could do nothing with that. I would note that the real issue in this case is what did Congress intend when it used the word "discrimination." HEW contends that the legislative history is extremely relevant, yet they totally ignore perhaps the most relevant legislative history in dealing with the meaning of the word "discrimination." They say not one word in their brief about Senate Committee Report 92-61 which states in essence that one and only one practice in subdivision 6105 (d)(1)(B) is presumed to be discriminatory if disparate impact exists. That speaks directly to subdivision (B). Subdivision (B) has two types of activities, demotions and dismissals and for the sake of this argument assignment of staff. They are two very distinct clauses in it. That committee report makes it clear that one and only one is presumed to be discriminatory. HEW ignores the language later on in that same Senate committee report where it states, "The phrase disproportionate to demotions or dismissals is not modified nor in any way diminished by the substantive phrase or otherwise engaged in discrimination in the assignment of staff." These are two separate and distinct clauses.
William H. Rehnquist: Well, you wouldn't contend, would you, that the rulemaking authority of the agency charged with carrying out the act is necessarily bound to follow the committee reports of one of the Houses of Congress.
Joseph F. Bruno: Oh, no, they are bound to follow the intent of the legislature in enacting the statute. We say the clear intent of the legislature in enacting this is to require an intentional discrimination test for assignment of staff. Let me tell you why.
William H. Rehnquist: But the reasoning of your last argument, as I understood it, was your reliance on the Senate committee report.
Joseph F. Bruno: My last argument was the reliance on the Senate committee report indicating what the intent of the legislature was in passing this particular statute and this particular section. Let me say further, beyond that, there is other ample proof of what the Congress was talking about when it used the word "discrimination."
William H. Rehnquist: I don't doubt that it is a factor, but I got the impression that you were saying that the agency charged with making the rule can never go against the language in a committee report.
Joseph F. Bruno: Absolutely not, I am not saying that, but I am saying that that language in that committee report taken with the legislative history, indicates the intent of the discrimination test for this section of the statute which is the eligibility section which is at issue in this case. In 1972, the language of the section was enacted, the meaning of the word "discrimination" as discussed by Congress, it was very clear what they were talking about. They were talking about Swann, they were talking about Brown, they were talking about intentional segregation, de jure segregation, and they were enacting this section. In fact, Rep. Dellenback said ESAA does not alter in any way the legal aspects of desegregation, its purpose is to help school districts see that existing law is enforced. Senator Mondale, in discussing this, talked about Swann and said the only actual discrimination we have is de jure intentional segregation. HEW argues that it is equally plausible that discrimination can mean disparate impact and they allude to Title VII. They ignore, for one, the discussion of desegregation and the cases that we were talking about, of Swann and Brown. They ignore that Briggs had come down in March of 1971 and not one statement about Briggs in the Title VII case. They ignore that in the third section, 1605(d)(1), discrimination is mentioned twice. They can see in subdivision (d) that it is an intent test, and now they wish to ignore that.
Potter Stewart: Mr. Bruno, was there some -- Title VII was already on the books?
Joseph F. Bruno: Oh, yes, 1964.
Potter Stewart: And was there some comparison with Title VII as to what the standard was?
Joseph F. Bruno: Are you talking about HEW?
Potter Stewart: No, in the passage of this act. This is --
Joseph F. Bruno: Oh, yes, absolutely, and I will get to that if you would like.
Potter Stewart: Okay. In your own time.
Joseph F. Bruno: All right. Let me just go into the rationale for the demotion and dismissals test.
William J. Brennan, Jr.: Before you go to that, Mr. Bruno, you two or three times mentioned the language in subdivision (d), but there they expressly use the intent language in order to avoid, so that is not saying -- it is not fair to infer that whenever they use the word "discriminate" thy had an intent test when they spelled it out in the --
Joseph F. Bruno: Your Honor, they use the word "discrimination" and we think that it is extremely important that we use that. Let me talk a bit about the language of that subdivision (d) --
William J. Brennan, Jr.: Wouldn't you agree that in order to avoid, it is pretty clearly intent language?
Joseph F. Bruno: Yes, we agree that that is an intent standard. We also feel that the (b) section is also. They rely essentially on the word "otherwise," if you look at their brief. They rely on the use of the word "otherwise" to indicate that the test used for demotions and dismissals should be the same test used for staff assignments and they say "otherwise" denotes commonality or similarity. They say it is obvious from using the word. Well, I just did very little research on that and looked in the dictionary and the word "otherwise" does not mean commonality or similarity, it means contrast. Now, it could mean that and I would not say that it could not mean that in the context of this statute, but I think if we look at how it was used here and if we consider -- if Congress wanted to say demotions and dismissals, the same test applied to demotions and dismissals and used the same test, all they would have to say is disproportionate to demotions, dismissals, assignment of staff, hiring and promotions. They didn't do that. They broke this up in the legislative history. To get back to Mr. Justice Rehnquist, that is why I cite Senate committee Report 92-61, because I think that points out that they were talking about two separate clauses. The rationale for the disparate impact test for demotions and dismissals is very clear. HEW ignores what we say about this in their brief. Senate committee Report 92-61 points out that Congress was concerned that the districts at this time that had desegregation orders against them were demoting and dismissing black principals and staff in the South, and what Senator Mondale said during the debates was that there have been wholesale firing of black teachers and principals in the South in conjunction with desegregation orders. So when they passed this section dealing with demotions and dismissals, a disproportionate demotions and dismissals in conjunction with desegregation order, so the rationale is very clear.
Potter Stewart: Mr. Bruno, is it your submission that just standing alone the phrase "practice discrimination" implies intent?
Joseph F. Bruno: The word "discrimination" as it was used there, which we indicate --
Potter Stewart: If it is unlawful to practice discrimination --
Joseph F. Bruno: Yes.
Potter Stewart: -- do you say, without reference to anything else in the statute, that that implies intentional?
Joseph F. Bruno: In that statute we believe it does. We believe it does.
Potter Stewart: Well, it is just a matter of meaning of words?
Joseph F. Bruno: Yes.
Potter Stewart: The practice of discrimination would imply intent.
Joseph F. Bruno: And I would say not only the meaning of the words but the juxtaposition in that statute, the way they use them. When they want to talk about disproportionate disparate impact test, they use the term disproportionate. They changed the term and they could very easily have kept that term to deal with the remaining elements. HEW would have us believe that all they are really doing there is saying disproportionate demotions or dismissals and all the rest follow that test. For one, it doesn't read that way and I say it is illogical. It is not what they ware doing. They use discrimination twice. HEW relies on another section, and so does the Court of Appeals in finding that a disparate impact that applies to ESAA eligibility, they rely on section 1602(a) of the ESAA statute. At the time that ESAA was introduced, there was considerable discussion in Congress about doing something about de facto segregation. They wanted to do something but they realized that the decisions of this Court and elsewhere were prohibiting them from doing something about de facto segregation. So what they did was they passed ESAA. They said if you want ESAA money, in order to be eligible you must establish that you are implementing a court ordered desegregation order or you are going to do it voluntarily. What were they trying to do? They were trying to do away with de facto segregation by offering a carrot to districts they could not get after the courts, but saying do away with de facto segregation and we will offer you this ESAA funding. Section 1602(a) states -- and so much is placed on this section, there is so much discussion in HEW's brief and in the Court of Appeals -- it states essentially, "that guidelines and criteria of ESAA be applied uniformally without regards to the origin of cause of segregation." What that means is that ESAA money be made available to districts regardless of whether it is de jure or de facto segregation, go out and do something, it was broadening these eligibilities. They would have us believe that 1602(a) meant a disparate impact test for ESAA eligibility. Well, if they had meant that, that at least one element of ineligibility in subdivision (b) knocks that logic out totally. I would like now to get to the Title VI discussion. Perhaps the most -- we feel that perhaps the most important and significant error in the opinion of the Court of Appeals was its failure to assess the impact of the Bakke decision on the standards of discrimination applicable under Title VI. The Court cited Bakke in its Title VII language but at least I think in our petition for cert inexplicably they said nothing about the Bakke case with respect to Title VI. Instead, they cited Lau v. Nichols. The Court of Appeals relied on Title VI as an additional basis for finding that the disparate impact test applies to ESAA eligibility. HEW has determined that Title VI is not an issue. I say it is a rather cavalier determination because in our petition for cert, perhaps the most important and perhaps our strongest point was the Court of Appeals failure to even note the Bakke decision in discussing Title VI. Title VI, whether it is the standard for ESAA or Title VI is the standard establishing what is discrimination we say in this context, but whether it provides the actual standard for ESAA eligibility or not is certainly interrelated, and let me explain why. The Court of Appeals said it was. Their language says that it is. The statistics upon which the Court of Appeals and HEW relied in finding the Board ineligible was in Title VI non-compliance letters. Title VI is a major enforcement now for all federal funding. ESAA is incorporated through a series of amendments to the Elementary and Secondary Education Act of 1964. Title VI enforces that act and the procedural aspect of enforcement is codified in Title VI. Secretary Finch during the ESAA debates said, when asked whether a district would be eligible for ESAA funding and it was discriminating in the assignment of teachers, he stated that such a district would not be eligible because it would be violating Title VI. The Second Circuit in a later decision cited in our main brief, Parents Association of Andrew Jackson, has now said -- I will read it "We think that Title VI does not authorize federal judges to impose a school desegregation remedy where there is no constitutional transgression -- i.e., where a racial imbalance is merely de facto." So even the Second Circuit in issuing this decision was wondering if they did the right thing. They say the continued viability of Lau is suspect and they are waiting this Court's consideration perhaps in this case or another case. The Second Circuit in the Jackson decision went into a bifurcated view of Title VI. It is in our brief and I really don't think I should go over it in any great detail. But what it did was it went through such a tortured reasoning of Title VI to find that in this context, in this very case that a disparate impact test could apply and likened it to Title VII which is not. It did that because it felt that Title VI was extremely relevant, the test was extremely relevant to what the test for ESAA eligibility is. This is a desegregation case. Even under the Jackson decision of the circuit, we would fall within the intent test that they have indicated. The appropriate test we say for finding discriminatory intent was set out in the Arlington Heights case. HEW relied on two elements. They used a foreseeability test, citing to the Hart case in the Second Circuit, and on Swann they relied, some language in Swann. As this Court has recently held in the Feeney case and in Columbus Board of Education, foreseeability is one element in establishing intent. It is not in and of itself sufficient to establish intent. Secondly, I would like to note that even the circuit, the Second Circuit in the Jackson case has some doubts about the viability of the Hart case that it relied on. Lastly, I would like to note that the Swann case relied on by HEW in its finding of ineligibility for the Board of Education cites this language "Disparate racial composition of staff to establish a prima facie case of equal protection of violation." Well, I would say that is somewhat disingenuous to us that clause because in Swann you have a situation where you had de jure segregation and, yes, once you had a prior finding of de jure segregation, then you could use such a test to perhaps imply intent at a later time. Keyes makes that eminently clear. In New York City we had no finding of intentional discrimination. Your Honors, I would like to ask the Court to have an understanding of the ESAA statute, that ESAA was intended to make money available to districts that were experiencing de facto segregation. What else would it be for? It was to assist in doing that, in eliminating de facto segregation. HEW argues in their brief that the solution adopted in ESAA was to employ the carrot approach to encourage the voluntary elimination, reduction or prevention of minority group isolation. They then continue "It seems evident that with such a starting point, it would make no sense to grant funds to school districts that, although not violating the Constitution, were maintaining a segregated system." The logic is incredible to me. That is what this is all about. I thought the money was to be made available to districts that had de facto segregation. That is what the intent is all about. They would deny it to the very districts that have the type of segregation that this money is intended to work on. We have an extensive program in New York. We are ready to go ahead with that program. HEW has taken a course that we are not eligible here, we are not eligible under the following year. I say that what they are doing is frustrating the legislative purpose, the clear intent of the legislature. Their brief doesn't deal with this. Their brief deals with virtually nothing with respect to the legislative history. It talks a bit about 1602, it cites no cases except for the Aspira case, and I think they think that -- if in fact they think it is all right and they want to interpret the legislative intent their way, that is sufficient. I think they have to look a little more closely to what Congress intended.
Byron R. White: What do you do with this statement with section 1602 (b) when you are making your Title VI argument --
Joseph F. Bruno: 1602(b) --
Byron R. White: -- where it says that the guidelines and criteria under Title VI shall apply evenly throughout the country, regardless of whether it is de jure or de facto.
Joseph F. Bruno: Right. That is the Stennis amendment. That is part of -- we have an argument in our brief about this Stennis amendment. Senator Stennis put an amendment on the floor of Congress which was later adopted and became section 1602(a) and 1602(b). What Senator Stennis was attempting to do was to make a police statement to perhaps the nation, to perhaps the Congress, perhaps this Court. He wanted to see something done about de facto segregation. He was saying essentially that the South was being burdened.
Byron R. White: Well, if he was saying that Title VI--if Congress was saying that here on this is what Title VI would mean --
Joseph F. Bruno: I don't think it --
Byron R. White: -- that Congress was saying that --
Joseph F. Bruno: I don't think it was saying that.
Byron R. White: -- at least five people in Bakke were a little off base.
Joseph F. Bruno: I understand that. But what he was saying was this is simply a policy statement. I think it is very clear from his own language -- he said why should not Congress light one little lamp --
Byron R. White: He said it but this is in the act.
Joseph F. Bruno: I understand.
Byron R. White: It isn't Senator Stennis. This was adopted by both Houses of Congress.
Joseph F. Bruno: I understand.
Byron R. White: And it was signed by the President.
Joseph F. Bruno: I think it is no more than a policy statement and I don't believe it had any other action-ability. I don't believe that Congress intended it to do anything other than -- you have to look at the legislative history to get that and you get it very clear from the discussions of Senator Javits.
Byron R. White: Well, you say the holding in Bakke is just to the contrary.
Joseph F. Bruno: Yes.
Byron R. White: About Title VI.
Joseph F. Bruno: Yes, and I say that that portion of the ESAA statute is no more than a policy statement, as is section 1602(a). If 1602(a) means anything, it means to broaden ESAA eligibility. In the end, I would ask this Court --
William H. Rehnquist: When you say to broaden ESAA eligibility, you mean to broaden it not only to cases where there was de facto segregation but where there was de jure segregation.
Joseph F. Bruno: Oh, yes -- actually the other way, I would say, clearly for de jure but certainly to broaden it to do something about de facto segregation. I think that was the clear intent of Congress. I don't think there could have been any other intent.
William H. Rehnquist: Then why would Senator Stennis be putting it in?
Joseph F. Bruno: Well, Senator Stennis' remarks are very clear. He was attempting to light one little candle. He wanted to go on record -- to be honest, I think he wanted to go on record in an enactment of Congress to say something about doing something about de facto segregation.
William H. Rehnquist: But you would think that a Senator coming from a state where there had been a history of segregation by law and clearly de jure segregation would be urging that schools guilty of de jure segregation be eligible for this aid, not only schools just guilty of de facto segregation.
Joseph F. Bruno: You see, when he initially submitted the Stennis amendment, he included ESAA, Title VI and section 182 together. I think he was attempting to sensitize the Congress and the nation and I would say this Court to do something in the future about de facto segregation. I think he was clearly just attempting to make a policy statement. I do not know what else he could have been attempting to do. I think he may also have been trying to frustrate -- the way he presented it, I think he was trying to frustrate the use of Title VI because he realized what the law was and he was attempting to put Title VI in the same box with ESAA. ESAA could he used against de facto and de jure segregation, but the way he presented it, it included ESAA, Title VI and section 182 altogether. They used the same language. Congress in the conference committee broke that out -- I think they broke it out because clearly ESAA could be used against de facto and de jure, but Title VI could not. Your Honors, I would like to reserve my remaining time for rebuttal. Thank you.
Warren E. Burger: Mr. Solicitor General.
Speaker: May it please the Court. We understand that petitioners do not contest the substantial disproportions in the assignment of full-time minority teachers; further, they do not deny that the schools were statistically racially identifiable as a result of the disparities in staff assignments. They argue that the statute and regulations must be construed to require the Department of Health, Education, and Welfare to establish that the disparities resulted from purposeful or intentional discrimination in the constitutional sense. Although on remand, the Department of Health, Education, and Welfare found the petitioners' teacher assignment policies were unconstitutional, and the District Court affirmed, we do not have to decide we submit whether the administrative record supports that finding because the Court of Appeals expressly declined to address that question. Also we need to decide whether the Court of Appeals' dictum about the sufficiency of an objective test for a violation of Title VI of the Civil Rights Act of 1964 is present. The regulation, 45 Code of Federal Regulations 185.43 --
Byron R. White: Mr. Attorney General, what if we disagreed with you or agreed with the submission of your friend here that this statute incorporates the constitutional test?
Speaker: Well, we submit that it does not incorporate the --
Byron R. White: I know you do, but what if we agreed with him? What if we agreed with him?
Speaker: I think if this Court agrees with him, then its course would be to remand this to allow the Court of Appeals for the Second Circuit to address the question of whether there is a constitutional violation shown on the administrative record. And we think it does but we don't propose to argue it.
Byron R. White: We would then also -- well, I will put it this way. What if we agreed with you, is there any claim in this case that as construed to cover merely impact, this particular statute is unconstitutional because it is --
Speaker: We don't understand the petitioner to make that contention.
Byron R. White: Does this statute rest on the spending power or does it -- is it commerce or Fourteenth Amendment or does anybody know?
Speaker: Well, I think it rests certainly on the spending power. It might rest on the implementation of the Fourteenth Amendment, but I don't think we need to decide that either.
Byron R. White: Well, if it did it is running against the state and then you may have a little problem on it.
Speaker: There might be a problem there. I would like to suggest that if Congress, for example, thought that it would be good to promote foreign language instruction in public schools, it could appropriate special funds for the purpose of encouraging public schools to inaugurate or strengthen existing foreign language programs and it could provide for certain qualifications and for certain disqualifying features. For example, it might say that a teacher to whom the language to be taught is not a native tongue may not participate in this program, and I suppose then we would just look to see whether the statute was followed in the particular case and whether the regulations promulgated to enforce it were authorized by the statute. I think that is exactly what we have here.
William H. Rehnquist: General McCree, your hypothesis that Congress is not directing the state or the school to have foreign language instruction, it is simply offering financial aid if the state chooses to have it.
Speaker: Well, as we see this, Mr. Justice Rehnquist, the Congress is not directing the states to participate in this program; as my brother, Mr. Bruno, has suggested, this is a carrot on the stick. If the state wishes to do so, it may do so, but if it does it may not be disqualified as provided for in 1605(d) as we urge. The regulation clearly makes the school board ineligible if it has assigned its teachers "in such a manner as to identify any of such schools as intended for students of a particular race, color or national origin." We do not understand the petitioners to challenge at all the determination that these schools are so identifiable, so we are right at the statute. We submit that the Congress showed that it knew how to require unconstitutional or purposeful discrimination when it wanted to, and we refer to section 1605(d) where in response to a question from the Court, my brother sought to make the point that discrimination there was purposeful and indeed it is because it says in order to avoid the participation of minority group children.
Warren E. Burger: We will pick up there at 10:00 o'clock in the morning.