William H. Rehnquist: Very well, you may proceed whenever you are ready.
Duane Houdek: Thank you, Mr. Chief Justice, and may it please the Court. In this case the Court is called upon to examine the constitutionality under the "equal protection" clause of a fee charged of some North Dakota parents to bus their children to school. The fee is imposed only in a minority of districts which includes the Dickinson district, where the Plaintiffs reside. In a majority of districts in North Dakota, busing is provided to all free of charge subject to local mileage limitations. That is a statutory mandate in all of those other districts which compromise some 260 out of the 310 districts in the state. Within the Dickinson district, the fee is imposed against all save handicapped or special education students without exemption, without regard to ability to pay or the financial status of the parents. The effects of these two aspects of the Dickinson bussing policy and the authorizing statute come together and converge in this case where a poor family, unable to pay the fee, lives within one of the few districts where the fee is permitted to be charged. The parent who brought this case, Paula Kadrmas, lives with her husband and three children called New Hradec, North Dakota, on a farm that is some 16 miles from the school their oldest daughter is designated to attend by the district. She encounters the fee at all, again, only because she happens to live in that type of district. If she lived in any other districts, there would not be any kind of bussing fee that could, by law, be charged to her.
Sandra Day O'Connor: There are two types of school districts in North Dakota; the Organized and the Reorganized, is that it?
Duane Houdek: They've come to be known, and it's a rather awkward set of terms, Justice O'Connor, Reorganized and Non-reorganized.
Sandra Day O'Connor: Organized and Non-reorganized.
Duane Houdek: And the Reorganized districts have done so pursuant to statutes that were passed in the '40s to encourage an economy of scale, if you would.
Sandra Day O'Connor: And in terms of numbers of students, is it about equally divided among the two types of districts?
Duane Houdek: I think it is. I don't have the exact figures, but I think it's pretty close. And what that shows is that the Non-reorganized districts are generally the districts in the larger cities or towns and have a higher population of students, than the smaller districts.
Sandra Day O'Connor: Are the Appellants still living in the same location and their circumstances have not improved, I take it?
Duane Houdek: They're living in the same location, their circumstances have greatly deteriorated. At the time of trial it was found that after paying taxes of some $2500 they had about $12,500 left for a family of five. Since that time, they have started on a cattle enterprise, if you will. They got a loan to try and raise some calves--
Speaker: That should be no problem.
Duane Houdek: --That remains to be seen, Justice White until calving this spring. But the point of it is that out of this money that was allocated to them, prior to them getting any income at all from this operation, they were given only $12,000 to live on for the year, half of which inadvertently went to the former landowner, so they had $6,000.
Sandra Day O'Connor: Now, Serita has not actually been denied access to school in fact, has she, to public school education?
Duane Houdek: She has been denied access to the bussing system.
Sandra Day O'Connor: My question was whether she has, for purposes of this lawsuit been denied access to education, the public school education.
Duane Houdek: She has not missed school because of it. She has made it to school.
Sandra Day O'Connor: Is there any kind of ripeness problem? Excuse me?
Duane Houdek: No, I don't think there is at all, Your Honor, for one thing part of the challenged statutes include payment of the fee or the demand for the fee, and that goes on whether or not she actually made it to school or not, so I think that remains.
Antonin Scalia: You would not urge, if that's all that's left, though, you wouldn't urge any heightened scrutiny on the requirement to pay a bus fare, as you do of the ability to go to school?
Duane Houdek: No, if that was all that was left, we would not.
Antonin Scalia: It's ordinary protection analysis?
Duane Houdek: Yes. I believe, implicit in my analysis there is more left than that, Your Honor.
William H. Rehnquist: Well, what? Her folks took her to school. They drove her to school, didn't they?
Duane Houdek: They did. What happened there, Chief Justice Rehnquist, because of a North Dakota case decided in the North Dakota Supreme Court. The court stated that if anybody signed a contract, one of these busing contracts that are frequently used, or were used in the Bismark district, at any rate, then they could not challenge the constitutionality of having to pay that fee. And so the plaintiffs in Dickinson, once the District was adamant about demanding them to sign such a contract, were put in a position that if they did so, they would not have been able to bring their case in state court. So they were left with that on one side; the compulsory attendance laws of North Dakota on the other side, forcing them to in some manner get their children to school, and the only thing left was to drive them themselves.
Sandra Day O'Connor: Mr. Houdek, do you lose your case unless the Court applies some form of heightened scrutiny?
Duane Houdek: No, no, Justice O'Connor, I don't believe that's true at all. It seems to me that recently this court has stated that even under the minimum rational basis test of equal protection, it is looking when there are rights that are important, such as the one we're dealing with here, are rights that have been called by this Court important to the fabric of our society, and to all the political processes that citizens need to engage in.
Antonin Scalia: Excuse me, this is just the right to money, isn't it? She doesn't want to pay money for the bus ride; other people don't have to pay; she has to pay. What are we talking about except money?
Duane Houdek: We are very much talking access for someone who doesn't have that money, nor the ability to drive those children to school herself.
William H. Rehnquist: But this person got to school.
Duane Houdek: She did for this year, but it is clear ion the documents that were filed in response to the Motion to Dismiss, they can't be expected to do that every year. They did it at great personal expense; they did it by incurring debt that sooner or later that credit is going to be cut off to people of their means. They did it only through the most extraordinary.
William H. Rehnquist: Maybe at that time you will have a different lawsuit, but it seems to me now she's been deprived of bus transportation because she couldn't pay for it. Now that raises an obvious equal protection problem. But she hasn't been deprived of going to school, has she?
Duane Houdek: No, Your Honor, she has not. She has gone to school. I believe it is necessary to recognize that this transportation scheme in North Dakota is part and parcel of the education system, and not merely some benefit like a band uniform might be or something else.
Sandra Day O'Connor: Well, what if it were a charge of something to get a driver's license? Do we have the same problem if the person can't afford to pay it?
Duane Houdek: No I don't believe we do.
Sandra Day O'Connor: Or a charge for taking garbage away?
Duane Houdek: Sure. That was raised in one of the amici briefs, I believe, as kind of a user fee analysis.
Sandra Day O'Connor: Yes.
Duane Houdek: Here this is not a user fee situation, Justice O'Connor.
Sandra Day O'Connor: You don't think a little charge for transportation is a user fee in a sense?
Duane Houdek: No. And here's what I think is the fundamental difference. A driver's license is a privilege the state gives someone and someone can apply for it or not. Here attendance at school--
Sandra Day O'Connor: But desperately important, is it not?
Duane Houdek: --It is important. Granted. But attendance at school, and at school, not education in your home, but attendance at school in North Dakota, is compulsory. It is mandatory. The state in the vast majority of the districts recognizes that and provides transportation free-of-charge, and that has been a historical tradition in North Dakota, so much so that the compulsory education laws were not enforced against people who lived away from the school, and for whom the district did not provide transportation. So it is more than simply a benefit that one might avail themselves of.
Sandra Day O'Connor: What about this statute in North Dakota that says "No students rights or privileges shall be denied for non-payment of fees? "
Duane Houdek: Yes, if I may answer that from a couple of different approaches: first, that has not been judicially construed to say whether or not it would include transportation.
Sandra Day O'Connor: Have you argued that it does include transportation?
Duane Houdek: We brought this waiver statute to the attention of the trial court and to the other side, as a matter of fact. No one has ever--
Sandra Day O'Connor: Do you take the position that the statute protects your client from the payment of the fee?
Duane Houdek: --That has never been established that it--
Sandra Day O'Connor: Do you take the position that it does?
Duane Houdek: --I would say, Your Honor, that if that statute is so-construed, that that would go a long way to resolving the constitutional problems that are here.
Sandra Day O'Connor: Yes, I suppose you certainly would want to argue that it covers your client, if you have any interest in protecting them at all.
Duane Houdek: Certainly so, certainly so. If as the Appellees have seemed to indicate, that that statute takes care of the entire problem, yet it is more than a little curious that that statute has been raised by them for the first time in this Court after some two years of litigation.
John Paul Stevens: That doesn't take care of the entire problem. You're not saying it takes care of the entire... you still have an equal protection problem that people in some counties have to pay for the busses, you know,--
Duane Houdek: That's right. But I--
John Paul Stevens: --up to the point where you're below the absolute poverty line that you can't possibly get to school. You'd still be disadvantaged as regards everybody else in the state.
Duane Houdek: --That's right. I interpreted the question, Your Honor, as it would apply to our clients. They would be covered by such a statute because they would certainly fall within those whose privileges or educational opportunities would be taken away because of a lack of an ability to pay. And if the statute prohibits that, then they would be covered. It does not, as you suggest, cover any kind of geographical disparity that exists within the state.
John Paul Stevens: I don't think Justice O'Connor was asking you to concede or to asking your position as to whether your clients qualify under this statute if it's interpreted the way your opponents say it should be. You're not sure they would qualify under it, are you?
Duane Houdek: Yes, Your Honor.
John Paul Stevens: You are?
Duane Houdek: All I could say to that is that someone with their income and their family composition does not qualify, then that statute would not be protecting their children.
John Paul Stevens: Then you're right, the case is gone if that statute's interpreted, though.
Duane Houdek: Well, it's interesting: all along, it seems, the Appellees have said "There's no need for a waiver in this case; we have one in the statute. " "We do this as kind of a noblesse oblige, but if in fact they are saying that statute applies, and if they will say that that is the law in North Dakota, that they will not deny a student access to that bus system if they haven't an ability to pay, and they will not attempt to collect from a parent as an ability to pay the fee that may otherwise may be involved, then we're a long way towards settling this case. " But up to this point, that has never been done. They have never been willing to admit that.
John Paul Stevens: This statute doesn't say anything about inability to pay, does it? It says, "Nonpayment of fees". Is that what... are we talking about the statutes quote on page 29?
Duane Houdek: Yes, Your Honor.
John Paul Stevens: It doesn't say anything about inability to pay.
Duane Houdek: No. It does say that--
John Paul Stevens: It doesn't say anything about bussing. It says, "Rights are #" if it means you shall not be denied the right to get on the bus because you don't pay the fees, if you read it that way, why hasn't she been riding the bus all these years?
Duane Houdek: --That's right. If that statute meant that, then she should have never been turned down.
John Paul Stevens: Seems to me that's rather strange. I assume there's no way to read this in such a way that it would remove the liability for the fees. All it means is you have to get this particular student to school, or I presume her parents would continue to be liable for the fees which the school could try to collect from them, or the state could if and when the state had sufficient funds.
Duane Houdek: Yes, absolutely. I think in that way it's analogous, perhaps to providing indigent counsel and then trying to recoup that if the person thereafter comes into funds. I agree. I believe in--
John Paul Stevens: Let me just clear up one other thing in my mind: they have said that they won't let her ride on the bus not only because she doesn't pay the money, but she has to sign this contract?
Duane Houdek: --Right.
John Paul Stevens: So that this statute wouldn't cure that. She's got to... and that contract required her to waive the kind of claim she asserts in this case?
Duane Houdek: Right, so it's a real catch-22. If they maintain that position, then they would never know whether they would get into a situation where the statute pertained. And I might add, that refusal to sign the contract has been characterized as something that was done to, like our clients thought it up to maintain standing. It was demanded of them... for the very reason that, if they did it, they couldn't challenge any of the fees. It came from exactly the other way around. To summarize that point, if I might, I think everyone here involved in this case and the Court below, recognized the essential nature of transportation to education in North Dakota where we have these very large districts and centralized schools and a rural population. I mean, the majority did; the dissent below did; the Appellees seem to concede that.
Byron R. White: As I understand your argument, though, if North Dakota didn't furnish bus transportation to anyone in order to get to school, you would say that that... practice was unconstitutional as with respect to poor people?
Duane Houdek: Yes. I think, of course, Justice White, that this Court, because of the circumstances of this case need not go nearly so far.
Byron R. White: Your argument here, that's your principal argument.
Duane Houdek: Our argument is that--
Byron R. White: Your principal argument is about poor people.
Duane Houdek: --Yes, it is also about--
Byron R. White: I suppose your equal protection argument would be just as good with respect to the difference between Reorganized and Non-reorganized districts... if there weren't any poor people, I suppose somebody who could afford to drive their child to school could make it just as good an equal protection claim as you could with respect to the difference between the districts.
Duane Houdek: --That's correct. I believe that's true. But again, I don't think any decision of this Court would have to rest on that ground alone because our clients clearly fall within however you might define poor people.
Byron R. White: That may be so, but if we rely on that, then we would have to be saying that North Dakota is constitutionally required to furnish bus transportation to poor people, who have no way for their children to get to school.
Duane Houdek: I think what it would... that's a fair characterization, Your Honor.
Byron R. White: I think it is, too.
Duane Houdek: That would come in to play if within the context of the present system, where were they compel attendance to school, where that is mandatory; where if there's someone 20 miles from the school they provide who has absolutely no way of getting in there--
William H. Rehnquist: Is there any evidence that North Dakota has ever prosecuted anyone under the truancy statute who was simply unable to afford the bus to school and therefore did not come?
Duane Houdek: --That there is... it's not recently, Your Honor. Recently, the cases have taken on a home-school kind of issue and people keeping them back for because of their choice in education. But there has been at least one case where the North Dakota court has held that where a person was offered only a $.50 per day transportation allowance and not actually brought to school could not be subject to prosecution for compulsory attendance.
William H. Rehnquist: Could not be? I don't think you said, "could not be"? Is there any case ever holding otherwise in North Dakota? I mean, are there many prosecutions under the truancy statute?
Duane Houdek: In the context you mean, I am not aware there are a lot, Your Honor.
William H. Rehnquist: So what's reality at issue is what you say is the denial of the right to public school education, not the dilemma that you're going to be prosecuted for truancy if you cannot afford to go on the bus?
Duane Houdek: While I agree that the denial of the public school education is an extremely important factor, and denial of such a right does raise these constitutional issues. I think that the part about compulsory attendance merely brings it into finer focus. I mean, here's a state that's saying education is so important you've got to get there; you've to do it in our schools; we're going to give transportation to most of the districts, but we're going to withhold some. And we're going to do from the poor within those districts as well, without any kind of a waiver situation, because that's the way it has been applied. I believe the appellees can say all they want that informally they will do this or they will do that; but unless our clients have some legal guarantee, I think that's an empty promise. The administrations change; circumstances and people change, and unless it is backed up by some active legal significance, I don't think that promise is enough. I would like at this point to reserve the rest of my time at this point for rebuttal.
William H. Rehnquist: Thank you, Mr. Houdek. We'll hear now from you, Mr. Dynes.
George T. Dynes: Thank you, Mr. Chief Justice and may it please the Court: I think some more facts might be illuminating. This matter of charging a fee actually, although it is a state law, did originate in Dickinson back in 1973 and it was a plebicite of the bus uses that it came about. Prior to that it was a practice of picking up the children at the main road which could mean a half-mile or a mile or a quarter of a mile; and the bus patrons said we would rather pay a... that didn't cost anything. They said we'd rather pay a fee if you'll come to our yard and pick up the children and return them there in the afternoon. So that is what happened and that's what is still going on. Subsequent to that, actually, the law was passed in 1979. The fee at the present level and for the past several years as in the case of Serita Kadrmas was $97.00 for the full year. She's sixteen miles from school, so if you figure in and out each day, that comes to 1.7 cents per mile, far less than anybody could afford their own children. And as the evidence showed, that the Kadrmases, by their own testimony during the 1984-85 year... '85-86 year, excuse me, which was the year that this case was tried in trial court, that they spent $114 each month for actual expenses, and this was gas and similar expenses to haul the child back and forth, versus the fee which would have been $10.70 a month.
Harry A. Blackmun: And that proves what?
George T. Dynes: That proves that, although it may have been an imposition, they were able to get that child to school and clearly could have paid the fee which was--
Harry A. Blackmun: It doesn't prove they could afford it, does it?
George T. Dynes: --I think it does, yes.
Harry A. Blackmun: What if they went into debt and their debts were overwhelming and they continued to go in debt?
George T. Dynes: I think it would have been prudent to pay the fee.
Harry A. Blackmun: It might have been prudent but I don't believe it proves anything else.
George T. Dynes: Of course, with a family they are, they certainly aren't at a high level of income, but they did have resources to devote to various things, and it would appear that that's something they should have done. I understand they're doing that now.
Harry A. Blackmun: What do you mean by "resources to devote to those things? " They didn't have very much.
George T. Dynes: Pardon me?
Harry A. Blackmun: They didn't have very much.
George T. Dynes: No, it was certainly limited.
Harry A. Blackmun: Are you inferring irresponsible spending on their part?
George T. Dynes: No, not at all. And I'm sure that there wasn't enough at the end of the month, which was true for the good share of the people that ride that bus.
Thurgood Marshall: With all the resources of the state, you could have found out how much money they had, couldn't you?
George T. Dynes: Pardon, Justice Marshall?
Thurgood Marshall: Couldn't you have found out exactly how much money that family had?
George T. Dynes: Well, the testimony... they testified as to what their income was, and it was $15,000.
Thurgood Marshall: Are we bound by that or are you trying to add to that?
George T. Dynes: No, no. That's the only testimony, and that is the finding of the court. The poverty level at that time was $12,500.
John Paul Stevens: Mr. Dynes, what about... it might have been more economical, but what about the contractual requirement? They did have to sign this contract, in order to get the child on the bus?
George T. Dynes: That's true, they were asked to sign a contract. However, they weren't asked to pay the fee if they weren't able to pay the fee in advance. They were able to pay the fee when they could, and Mrs. Kadrmas testified that she understood that to be the policy. As a matter of fact, for the previous year--
John Paul Stevens: But the contract, let me just go back to the contract that would have required them, would have prohibited them from bringing an action in this case, is that right?
George T. Dynes: --I guess it would have, yes.
John Paul Stevens: What is the reason for that?
George T. Dynes: I guess not, they could still bring the equal protection on the argument between the districts; and I think they could still... I don't know if it would prevent them from bringing the action; but of course they would have committed to pay the fee. They couldn't have contested the legality of the fee, that's correct. But I'm not sure if they'd still have a lawsuit or not.
John Paul Stevens: Why do you have such a contractual provision? It seems sort of a strange thing to me?
George T. Dynes: It's a matter of lining up during the summer season to know who's going to ride the bus. They have... these are district-owned busses; they try to fill them to capacity; they don't want to have any empty seats in them; they have kindergarten children who just ride one way; they have some others who just ride one way because they want to stay after school for extra-curricular and things like that, so they do the best--
John Paul Stevens: Well, that would explain my--
George T. Dynes: --They do the best the can to schedule. And of course, they do want a legal commitment. They do want the people to pay if they're able to.
John Paul Stevens: --What about... what is the reason for the waiver of the right to challenge the fee?
George T. Dynes: What is the reason for the waiver?
John Paul Stevens: Yes. That's what puzzles me. One of the things that puzzles me about the case.
George T. Dynes: You're speaking about the statutory waiver?
John Paul Stevens: No, as I understand it... I don't have it in front of me; the contract would have foreclosed a lawsuit like this... at least some of the claims.
George T. Dynes: Well, they would have agreed that they were obligated to pay the fee. There's no question that that's true. There would be a legal obligation.
John Paul Stevens: And that they could not contest that fact?
George T. Dynes: I don' know that it said that in there. It didn't go into the legal matter. It wasn't drawn up by a lawyer; it was just a contract that was drawn up by the bus administrator asking people to agree to pay a certain fee, and it's I think probably was somewhat of an outgrowth of this case in Bismark where Mr. Houdek mentioned there was a suit and the case was denied on a constitution attack because the individual had signed the contract.
Sandra Day O'Connor: Mr. Dynes, I guess no matter how we view the case, we have to address the argument here that there's an equal protection denial by virtue of different treatment in North Dakota of reorganized school districts for bus transportation and non-reorganized districts?
George T. Dynes: Yes.
Sandra Day O'Connor: And the supreme court apparently found that the statute authorizing bus fees in non-reorganized school districts, but not in the reorganized ones, was rationally related to the legitimate government purpose of encouraging reorganization?
George T. Dynes: I think we have to take that in two parts, Justice O'Connor. The reorganized school districts started reorganizing under laws that were passed in 1947, and that process basically has been completed. It could still continue. But pretty much all the little ones have become bigger ones now. And under that law, it did say that each district, when they reorganized, has to have a plan. Now it's not the same plan. They create their own plan which they vote on. Then the electors in each small district being reorganized into the larger district would have to approve that plan in order for the reorganization to be completed. And that is what the supreme court was referring to when they said the rational basis was to encourage reorganization in the larger districts.
Sandra Day O'Connor: We now have this scheme on the books and if it's a reorganized district, they can't charge bus fees, and if it isn't they can, and that's being challenged?
George T. Dynes: That's right.
Sandra Day O'Connor: Now what is the legitimate governmental purpose now, do you suppose, in that difference?
George T. Dynes: That as the reorganization has been completed, the plans are in place; they've been voted on in the individual districts and the legislature when they passed this fee statute, simply left those districts alone because they had those plans in place, with not charging any fees.
Sandra Day O'Connor: So I'm asking you for what governmental purpose we should look in the discrepancy here? How do you defend it?
George T. Dynes: The first purpose was to reorganize, which they did. They have a plan in which they're honoring; they're not disturbing that plan. The other districts, like Dickinson, never had any... they weren't reorganized; never have been--
Sandra Day O'Connor: And never will be.
George T. Dynes: --And never will be.
Sandra Day O'Connor: Too big.
George T. Dynes: They were never required to have any bus system, you see. The statute now and for many years past, has said that a school like Dickinson need not have a bus system at all. But they can elect to do it simply by action of the board, as opposed to, in the reorganized districts, where it was an action of the people, and it was part of the plan.
Byron R. White: This was a local option?
George T. Dynes: Local option... and those plans, you have to remember, were different, and are different. It's been suggested that they have free bus transportation; well, it's true they don't charge a fee, but they don't haul all of the children either. They typically won't haul any children that are within two miles of school, for instance, and they very often don't go door to door like we do in Dickinson.
William H. Rehnquist: In the case of a non-reorganized district, which I take it Dickinson is--
George T. Dynes: That's correct Your Honor.
William H. Rehnquist: --Is the district simply left free to decide whether or not they will charge a fee?
George T. Dynes: That's true.
William H. Rehnquist: It's not as if the state says you will charge a fee to some districts and you won't to others, and with the districts that aren't reorganized, they are left a local option?
George T. Dynes: They are left a local option and the statutes are completely silent on whether or not they could charge a fee.
William H. Rehnquist: But with the reorganized districts, the state tells them you can't charge a fee?
George T. Dynes: Well it doesn't say that. It says you have to have a reorganization transportation plan. And the statutes are silent as to whether or not you can charge a fee. I think they may very well be.
Byron R. White: All of these systems that are local option on bussing?
George T. Dynes: Well, in a way, except that the reorganized districts are done by vote of the people at the time the districts was organized, the unorganized districts--
Sandra Day O'Connor: I thought that the supreme court said that the reorganized districts could not charge a bussing fee. I thought that was the assumption on which they took the case?
George T. Dynes: --The statute is silent on that. I don't remember that that was in the decision.
Sandra Day O'Connor: Well what does the supreme court say?
George T. Dynes: I'm not sure, Your Honor; I'm not sure about that. They don't, and nobody wants to in those districts, and I think the reason is because they have this plan in place. But the other districts either have the option of having the bussing plan of any kind, and they also have the option of charging a fee or not within the limitation, of course; and they also have the option to determine how far away from school they require people to live in order to take advantage of the system.
William H. Rehnquist: In your view, so far as the North Dakota statute are concerned, it's optional to charge fees for the school bus in both kinds of districts?
George T. Dynes: No. The statutes don't say that. That would be another lawsuit.
William H. Rehnquist: But well, I think what several of us are trying to find out is, do the North Dakota statutes mandate one way or another as to whether a fee should be charged for a school bus trip in (a) the reorganized districts; and (b) the other districts?
George T. Dynes: In the reorganized districts it says nothing about fee. It doesn't say they can charge it; it doesn't say they can't charge it. And they don't charge it.
Byron R. White: The reason that fees are not charged for bussing in the reorganized districts is that those reorganization plans provided for free bussing?
George T. Dynes: I think that's true. And there has been no attempt to change that.
Byron R. White: A reorganized district might possibly not charge a fee at all?
George T. Dynes: Absolutely.
Byron R. White: They could have a transportation plan that says $1.00 a mile.
George T. Dynes: That's true. And they charge different fees. They're more expensive in some of the--
Byron R. White: So in effect, all the reorganized districts have opted themselves to provide free transportation?
George T. Dynes: --That in effect is true. But as I said, they don't haul all of the children. And I wanted to mention that the--
Byron R. White: Also their transportation plans really differ one from another?
George T. Dynes: --That's right. They're--
Byron R. White: They don't charge but their mileages are different or things like that-- --Mr. Dyne do you know--
George T. Dynes: --Some of them pick them up at the door and some of them don't.
Sandra Day O'Connor: --The opinion of the supreme court, I thought, stated that the North Dakota statute allows only those school districts which have not been reorganized to charge a fee for school bus service?
George T. Dynes: That's true, Your Honor.
Sandra Day O'Connor: And that's what they said. But you say we don't pay any attention to that?
George T. Dynes: No, Your Honor. I'm not saying that. I'm saying the statute addresses, that talks about those fees, talks only about the non-reorganized districts. It simply doesn't apply in any respect to the districts that are reorganized.
Sandra Day O'Connor: But don't we have to accept the interpretation of the statute placed on them by the supreme court of your state?
George T. Dynes: I think it's correct. I don't know that they have said... that the reorganized districts can't charge a fee, but Your Honor, that really isn't the issue.
Sandra Day O'Connor: I thought that was one of the issues raised by the Appellant?
George T. Dynes: All right, I stand corrected, I guess they have raised that issue. We will accept for the purposes of argument that certainly the reorganized districts can't charge. I know that they don't charge it.
Anthony M. Kennedy: What's the reason, then, for the distinction between the two kinds of districts? What is the rational justification that's offered for the distinct treatment?
George T. Dynes: Justice Kennedy, as I mentioned, I think the Court recognizes the argument for the rational basis for the reorganized district, having a busing plan. They're required to have a bussing plan. The other districts have never been required to have a bussing plan. It's been optional. The charging of the fee, the rational basis is simply to allocate available public funds. The cost of this bus is paid in Dickinson and it'll vary from district to district may charge a fee about 11 percent by the users; about 11 percent by the local taxpayers, which of course, includes all those who have used the bus and who don't and the rest of it is state money. Only a very small percentage of the students ride the bus, about 13 percent. The other 87 percent furnish their own transportation to and from school because they live within the four mile and within the three-mile limitation.
John Paul Stevens: Mr. Dynes, before you sit down, please follow up on Justice Kennedy's question. He asked you about the rational basis, or the reason for the distinction was, and you gave a reason which was quite different from the reason that your state supreme court gave. They said that the purpose was to encourage non-reorganized districts to reorganize. That was the only purpose they gave. During your argument you've said that's just not going to happen.
George T. Dynes: I don't believe you've read the entire opinion.
John Paul Stevens: I'm reading on page 64 of the Appendix which after explaining at some length why it's a rational basis standard, they say, "The obvious purpose of the legislation is to encourage school district reorganization with a concomitant tax base expansion and enhanced and more effective school system. " "The legislation provides incentive for people to approve school district reorganization. " That's what they say.
George T. Dynes: That's the separate legislation that requires that they have a bus plan in place, which they do, the reorganized districts. But the separate rational basis for letting them charge... for letting these other districts, charge a fee who don't have to have a plan in place--
John Paul Stevens: Where do they describe that in the opinion from the part I've read?
George T. Dynes: --I could pass a note through Mr. Spaeth later if you'd like. I'm pretty sure it's in the opinion.
John Paul Stevens: Well, I didn't find it.
George T. Dynes: It's been neglected in the briefs, I think.
William H. Rehnquist: Thank you, Mr. Dynes. We'll hear now from you, General Spaeth.
Nicholas Spaeth: Mr. Chief Justice, Members of the Court: may it please the Court, before beginning the argument I've prepared, I would like to pick up on a question Justice Stevens just asked because I can tell that the Court is interested in it. The reorganization statute which was passed by the legislature quite a long time ago, did have as its purpose to encourage reorganization, and it did encourage reorganization in the vast majority of school districts in this state. It would be a mistake to examine it solely in the context of Dickinson where there was no reorganization. It's done its work throughout the rest of the state, and it's done it in a pretty fair and rational way. It's purpose was to encourage consolidation, and as a quid pro quo, where there was consolidation, to guarantee that there would be school bus transportation provided to parents who were fearful that when their local school closed, they would have to face the responsibility of bussing or transporting your child in from a great distance. And that system has to be looked at based on its impact on the entire state.
Sandra Day O'Connor: General Spaeth, can a reorganized school district charge for school busing?
Nicholas Spaeth: No, I do not believe so. I think you are absolutely correct.
Sandra Day O'Connor: So we can put that at rest?
Nicholas Spaeth: We can put that at rest, that's right. Only unreorganized school districts may and it's their option.
Sandra Day O'Connor: All right, and so on the equal protection challenge, as to the difference between the reorganized and the unreorganized districts, what is the legitimate governmental justification for it?
Nicholas Spaeth: It was a local option to provide each school district with the choice of deciding first of all whether it wanted to reorganize; then if it decided not to reorganize, whether it wanted to charge a fee? The statute is actually neutral on its face. It does not say, in some districts, a fee must be paid and others not.
Antonin Scalia: You are saying, I think, if I understand it correctly, that it once had a purpose, to achieve reorganization. It really doesn't have any purpose any more except, I suppose, if you know that the incentives that the government promises one time, everybody else will get anyway; the next time they offer an incentive you won't believe in it. You're saying the only current reason for the distinction is that if the government should now say that everybody will get bus transportation free, people will say, "gee, you can't rely on the government. " "We thought that one of the incentives for reorganizing was that we'd get bus transportation; but now they've given it to everybody anyway so you simply can't trust the government when it promises things. " "That's the only current existing reason for the distinction. "
Nicholas Spaeth: No, it still has a rationale in the sense that it provides the non-reorganized school districts with an option. It gives them the choice: do we want to fund this service or do we not. That is certainly is a rational basis.
John Paul Stevens: General Spaeth, the option, if I understand you, at the time of the legislation, they were concerned about poor families living a long ways from the new central school, and what would happen to them if they didn't provide bus service?
Nicholas Spaeth: Not just poor families.
John Paul Stevens: Well, at least those who are a distance away. And now you say that some reorganized and some didn't, but those that didn't reorganize are functionally just like those that... the problem that the legislature was concerned with... some distant families not near enough to the school to get there without free bus transportation. So now how do you say under your... why should one family in that posture which has the same economic situation, same distance from school, why wouldn't the legislature express the same concern about that family as about those that were motivated to... who got into the plight just because they agreed to the reorganization? That's the problem.
Nicholas Spaeth: What happened here, Justice Stevens, is there was a very rational scheme was put in place given the needs of the state as a whole, and you're focusing on the Dickinson school district, where it isn't.
John Paul Stevens: No. I'm focusing on what the legislature was concerned about when it said, if you get yourself in this particular structure with a central school and people living a long ways away from it, we'll take care of you. But we won't take care of a similar set of circumstances in another district. What's the justification for that?
Nicholas Spaeth: Because when the legislature was considering this problem, the legislature emerged from a political compromise and realized that, in order to provide some districts with an incentive to reorganize, it was going to have to put in some guarantee that transportation would be provided. It didn't need that same incentive if they weren't going to reorganize, because generally... of course, not in every case... but generally there wasn't the same transportation problem; that the students would live close enough to their school where they wouldn't need free transportation.
Antonin Scalia: What you are saying is that the legislature had no intention whatever to benefit people distant from the schools; it just wanted to eliminate a possible obstacle to their voting for reorganization?
Nicholas Spaeth: That's correct.
Antonin Scalia: It has no beneficent desire here at all? It was just wanted to get their votes?
Nicholas Spaeth: The primary focus was to encourage this process of consolidation, and in order to get this legislation through, that important protection had to be put in to encourage the consolidation process, and that's what we're talking about here. Now, there's one other issue that troubles the court, and I want to talk about it, and that is, how did this case get here? In the jurisdictional statement, the question presented is whether a state may deny equal access to education to a distinct class of people, basically minor people whose parents are below the poverty level; I don't think on the record here that question is presented. I think, Justice O'Connor, that this case may not be ripe is entirely a correct one: first of all, there is no question they weren't denied education. Serita attended school through the entire course of this litigation. Second, she wasn't even denied transportation on the school bus. All that was required was that her parents sign this contract.
Sandra Day O'Connor: I guess it's enough to raise the challenge, isn't it?
Nicholas Spaeth: Well, the state law would have provided for a waiver of fee; and no waiver--
Sandra Day O'Connor: Well, let's talk about this state law. It would have permitted Serita to board the bus, whether her parents paid or not?
Nicholas Spaeth: --That is correct.
Sandra Day O'Connor: Would it have excused her parents from paying?
Nicholas Spaeth: Yes, it would.
Sandra Day O'Connor: You think it addresses that?
Nicholas Spaeth: Yes, all you have to do is if you look in the joint appendix, the court's Finding of Fact No. 14, that's located on page 7 of the joint appendix... what the court decided based on the conflicting evidence was all that the Dickinson school district required was that the parents sign the written agreement to pay fees, and make a bona fide effort to pay on these obligations, a bona fide effort. It's an open-ended kind of obligation.
Sandra Day O'Connor: Well--
Nicholas Spaeth: In fact, she'd been bussed for three years without payment of any fees.
Byron R. White: --But counsel, if their cattle works out, for example, and they make a lot of money, they're going to have to pay that fee.
Nicholas Spaeth: That's correct, and there goes the equal protection argument. That's what is important about the contract... because economic situations do change. And even though the Dickinson school district is not going to try to come out and garnish their earnings to pay a fee now--
Byron R. White: So as long as they're poor, they don't pay?
Nicholas Spaeth: --That's right. As long as you're poor, you don't pay. But if you come in to money through cattle or through the lottery, then you are going to be--
Antonin Scalia: I don't want to pay even if I'm rich. That's how I got rich. I don't spend money that I don't have to spend, and why should I have to pay for busses when rich people in other counties don't? So isn't there still an equal protection argument?
Nicholas Spaeth: --If you put it in that sense, right. If you consider that the state has somehow dictated this kind of discrimination. I don't think it has because the statute is neutral. But they you're left with some sort of purely geographic difference which the Court from McGowan v. Maryland on, has put a minimal of scrutiny on. Of course there are distinctions between counties, or the school districts, based on this fee, but those kinds of distinctions exist all over. They exist in life, and the Constitution has never provided a remedy for that kind of discrimination. And that's where I think we're left with the barest minimum scrutiny of a statute that on the whole works pretty well. It's not perfect--
John Paul Stevens: General, may I interrupt? You do have these distinctions in life. Sometimes a child moves into a neighborhood and everybody in the neighborhood is a Swede and the child is Irish and he gets beat up on the way to school; and in every school district except yours, the school authorities say we're going to protect the children as they go to school. But in this district the administration is Swedish and they say, "Go ahead and beat the kid up on the way to school. " He gets there though. He still doesn't have a challenge since he can overcome the obstacles and he gets there? You can tell Justice Stevens is from Chicago. 0 [Mirth.]
Nicholas Spaeth: --I am tempted to respond, Justice Stevens, by saying that is not the case here, but two weeks ago--
John Paul Stevens: Well, we've got an obstacle. It's an obstacle.
Nicholas Spaeth: --Justice Scalia warned the assembled Attorney-Generals in this room that we were not to answer a question that way; that we were indeed required to answer a question anyway, even if we don't believe it applies. And you might have a different case there. We're not dealing with the--
John Paul Stevens: And the justification would be the state says each school district runs its own affairs, except that in 9 out of 10 we have regulations that ensure that the children have adequate access to the school. But in this one, we'll let them run their own show. And they just happened to do it in this way. Would that be permissible geographic discrimination?
Nicholas Spaeth: --Yes, it would, and in fact, if you look at this Court's decision in McGowan v. Maryland and an earlier case, Calvert v. Maryland, where there were different... Ann Arundel County had different sets of rules than other counties, those kinds of challenges were raised and rejected. Unless the Court were to create a new form of constitutional protection, those kinds of things would be okay. The remedy there, of course, is some sort of due process action against the individual entity. But it is not an equal protection case.
Thurgood Marshall: I understand that you say there's no denial of education in this case?
Nicholas Spaeth: That is correct.
Thurgood Marshall: Well, let's take the State of Texas, and they tell the children in Galveston you can go to school in El Paso, would that be a denial of education?
Nicholas Spaeth: It depends, I suppose, on the purpose, Justice Marshall. It depends upon what the purpose of that. If the purpose was to disadvantage some distinct minority group, identifiable, yes it might be. You know, if we're talking about aliens being forced to go to school somewhere else because they're aliens, or even if the State of North Dakota said poor people are going to go to school in Galveston, instead of in Houston, we might have a problem. But the state doesn't do that here.
Thurgood Marshall: How are the poor people going to get there? That costs you about $300 airplane fare.
Nicholas Spaeth: They're going to have to move there, I think, is what the answer is.
Thurgood Marshall: It's easy.
Nicholas Spaeth: No it's not.
Thurgood Marshall: I think if you give one people bus transportation you should give it to the others. Offer it; not that they have to take it, offer it.
Nicholas Spaeth: It's not the state making that decision, Justice Marshall. It's the individual school district deciding whether or not to fund that.
Thurgood Marshall: I thought that state education was a part of the Constitution; that the state, once they offered education should offer it on an equal basis. The state.
Nicholas Spaeth: It does, Justice Marshall. It offers it on the same basis as everybody. The state funds--
Thurgood Marshall: You can't escape it by turning it over to the counties.
Nicholas Spaeth: --No, the state, just for your information, in this case the state funds 2/3rds of the transportation costs to the local district, and it's only the other third that we're talking about right here, the school district--
Thurgood Marshall: The other third could be very important to some people.
Nicholas Spaeth: There's no doubt about that, Justice Marshall, but we're talking--
Thurgood Marshall: It also applies to the millionaire. He might not want to spend his money on busses. He might want to put it on yachts. It seems to me, General Spaeth, that the fact that the state picks up the tab on most of the transportation... is it the same percentage in the reorganized and non-reorganized districts?
Nicholas Spaeth: --Yes. It's a uniform system applied across the board in the state.
John Paul Stevens: Then it seems to me there the principal; it's not so much then the county itself deciding how to disperse the local taxpayers' money, but you have the state financing it. That seems to me more of a reason to have a uniform rule.
Nicholas Spaeth: I disagree. It's no different than Texas financing system in Rodriguez, where the state didn't provide all of the funding for education to allow the school district to decide how much more it was going to contribute. In this case the state provides 2/3rds of it; the school district itself picks up another roughly six; and the parents are called upon to provide the remaining six. It's just one way that benefits... and we're talking about economic benefits here; there are a host of other examples here: medicare, medicaid; where people using those kinds of services have to pay a user fee. That's also true in food stamps. We are talking here about some things in life that are even more important than education where the users of those benefits have to pay part of the cost.
Antonin Scalia: I assume that in the reorganized districts where they don't make a charge for the bussing fee, it comes out of locally imposed taxes?
Nicholas Spaeth: That's right, the taxpayers there.
Antonin Scalia: So that the people who don't pay bussing fare have to pay something more in their taxes, although it probably wouldn't--
Nicholas Spaeth: Right and it generally is property taxes, which are not, you know, which are tax, and you could argue, I suppose that poor people aren't likely to pay property taxes, and therefore are likely to get a free ride in those kinds of accountings. But I don' think we're dealing with--
Antonin Scalia: --Nice pun. I like that. 0 [laughter.]
Nicholas Spaeth: --Again, I think we are dealing here with something that is an economic benefit, and we have one school district here that's charging a small amount for it. I don't think it's unconstitutional. I think it's some thing that probably isn't even properly raised in this case. If the court wanted to duck this case; I think that the record is such that it could be affirmed almost on an ulterior basis.
Antonin Scalia: I suppose that reorganized districts have got a better tax base, so an enhanced tax base--
Nicholas Spaeth: They certainly do.
Byron R. White: --and if an unreorganized district, probably because if it can't be reorganized isn't going to achieve a better tax base. So it's just economically in a different situation?
Nicholas Spaeth: In many cases that's right, Justice White, and you know it--
Byron R. White: Well, the Supreme Court said... indicated that right?
Nicholas Spaeth: --Yes, that's correct. But that's what we're faced with... $97.00 a year, which is a user fee levied in one county that's at issue here against a background of a system that really did what it was supposed to do, which was to encourage the reorganization of most of North Dakota schools. We're the most agricultural state in the United States; we're not a rich state by any means; and we're seeing what's happening all over the upper Midwest; and that is a shrinking of the rural population, even out of the small towns into the larger cities. And that's what's driven this whole process. It's largely complete at this point, but this program I think has worked well.
William H. Rehnquist: Thank you General Spaeth. Mr. Houdek, you have eight minutes remaining.
Duane Houdek: Thank you Your Honor, I would first like to point out that the concept of reorganization did not create the right to bussing in North Dakota. It is not as though there was no bussing. And the reorganization statutes then created that right. Bussing existed long before 1947 when the reorganization statutes were passed. As a matter of fact, what the statutes did was to ensure that that tradition would continue.
John Paul Stevens: But did free bussing exist before?
Duane Houdek: Yes, Your Honor. Older cases have said that this very statute that gave an option of providing transportation or making in lieu payments, although they were discretionary in which you did, they were mandatory that you did one or the other. So that has nothing to do with the reorganization statute. Secondly, this is not a local option case. This is not a Rodriguez "difference in quality of education". As Justice Stevens pointed out, these are mostly state funds, and it's more than 2/3rds. And in may cases it's 80 percent of the funds are state monies that are being distributed to the various districts. Withholding 80 percent... withholding all of that benefit because of the failure to pay that fee--
William H. Rehnquist: General, your opponent suggests that the fee equals only the local contribution. That the 2/3rds of the state money goes anyway.
Duane Houdek: --Yes. That's true, but withholding it from a person who doesn't pay it, withholding all that state benefit, is not something that a local option ought to be able to do.
William H. Rehnquist: I suppose you could say you could offer to take 2/3rds of it away with the school, would you?
Duane Houdek: No, I wouldn't, Your Honor. What I'm saying is that it's even worse that this fee could deny those people all of the state benefit as well. The formula apart from that, they don't pay the same percentage in every district; the formula is the same; the state funding of transportation formula is based on whether you use a small or a large bus; and the number of pupil days. Some districts get over 100 percent; they get more than their cost. Some get 50 percent, so the percentage is not the same.
Antonin Scalia: I suppose you can say that the person who can't afford the 1/3 fee or whatever proportion of that is charged, has to forego the other 66 percent just because that person doesn't have the money, but another resident of the district who has no children forgoes the whole thing, all the time. So one doesn't have the money; the other doesn't have children. It isn't the case that everybody in the district has to get the benefit.
Duane Houdek: No. It is like other parts of education; people pay taxes and fund it whether they have children or not because education is important to our society as a whole. And this is the same concept, Your Honor, at least I see that in that fashion. The question or the specter that this is a local kind of case It think is most disturbing because we're not talking about the inability of a district to tailor a plan mileage limits based on the size of the cities within their district or anything like that. They most certainly have the right to do that. What we're talking about is the denial altogether of the essential part of the education process in North Dakota. The difference, I think, in the geographic cases that were cited by Mr. Spaeth, here we have that element of compulsion again, and we have the benefit being given throughout the state and then being arbitrarily withheld. Most of the questions I noted from this Court has been what is the purpose of this? Why do we have this difference? The reorganization statute in 1947 reorganized the state as it was destined and designed to do. The fee statute, 32 years later, had absolutely nothing to do with that. It served no purpose. It has little to do with reorganizing those districts as any other statute you might find on the book. That process, as they have conceded, is complete, and it is not likely to happen in Dickinson. Unless there are any further questions, thank you very much.
William H. Rehnquist: Thank you, Mr. Houdek. The case is submitted.