Supreme Court Watch By Beate Bloch In the closing days of the October 1994 Term, the Court, voting 5 to 4, continued to narrow the scope of remedies available to remedy past discrimination on racial grounds. The Court also issued interesting decisions on preemption, taxation, and voting rights. School Desegregation Missouri v. Jenkins, 115 S. Ct. 2038 (decided June 12), marked another episode in the long saga of school desegregation in Kansas City. The Eighth Circuit Court of Appeals had affirmed a district court order requiring the state (1) to fund salary increases for teachers and staff within the Kansas City Missouri School District (KCMSD); and (2) to continue to fund "quality education" programs because student achievement was "at or below national norms." The Supreme Court reversed, 5 to 4. Chief Justice Rehnquist, for the majority, began by pointing out that in Missouri v. Jenkins, 495 U.S. 33, 110 S. Ct. 1651 (1990) (Jenkins II), the Court had not addressed the scope of the remedy. In this phase, however, the state had argued that the order directing salary increases went beyond the Court's remedial authority. Therefore, it was necessary for the Court to consider the propriety of the district court's reliance on "improving the desegregative attractiveness of the KCMSD." The opinion noted that every KCMSD senior high school, every middle school, and half the elementary schools had been converted to "magnet" schools. The district court's plan was designed to attract nonminority students from outside the KCMSD schools. Because there had been no interdistrict constitutional violation, the Supreme Court ruled, this "interdistrict goal is beyond the scope of the intradistrict violation identified by the District Court." The goal of "desegregative attractiveness" was beyond the admittedly broad discretion of the district court. The majority thought that the KCMSD had achieved "partial unitary status" under the test established in Freeman v. Pitts, 503 U.S. 467, 112 S. Ct. 1430 (1992). Many goals of quality education had already been attained. Improvement in test scores was "not necessarily required," because external factors may affect minority student achievement. The Court's end purpose is not only to remedy the violation but also to restore local control. "Insistence upon academic grades unrelated to the effects of legal segregation unwarrantably postpones the day when the KCMSD will be able to operate on its own." Justice O'Connor, concurring, noted that the issue decided had been extensively discussed in the state's brief. She agreed that the court could not go beyond the scope of the constitutional violation. Justice Thomas, in a separate concurring opinion, thought that racial imbalance was not sufficient to show a constitutional violation. Justice Souter, joined in dissent by Justices Stevens, Ginsburg (who also wrote a separate dissenting opinion), and Breyer, thought that the question decided by the majority, which the Court had refused to decide in Jenkins II, had not been accepted for review here, and should not have been decided without fair warning. The dissenters also thought that the requirements for showing "partial unity status" had not been met. They pointed out that discontinuing state funding would result in a large dip in salaries, and that the majority had failed to consider the relationship of those salaries to the rising level of student achievement not just to increasing attractiveness. The dissent further noted that the effects of the violation extended beyond the boundaries of the KCMSD, and that, in any event, the order contained no interdistrict remedy. Affirmative Action In Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (decided June 12, 1995), the Court, by the same 5 to 4 majority, questioned a federal affirmative action program. The Small Business Act provides for payment to a contractor using a minority subcontractor. Because of that provision, a subcontract had been awarded to a minority business. The low bidder's challenge of that award was dismissed by the lower courts. The Supreme Court vacated the decision and remanded the case for application of strict scrutiny. Justice O'Connor, writing for the Court, ruled that "federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest." Justice Scalia, concurring, thought that "government can never have a 'compelling interest' in discriminating on the basis of race in order to 'make up' for past racial discrimination in the opposite direction." Justice Thomas, concurring, believed: "Government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice." Dissenting opinions were written by Justice Stevens, joined by Justice Ginsburg; Justice Souter, joined by Justices Ginsburg and Breyer; and Justice Ginsburg, joined by Justice Breyer. Preemption In City of Edmonds v. Oxford House, 115 S. Ct. 1776 (decided May 15), the Court, 6 to 3, construed broadly the Fair Housing Act's prohibition of discrimination against persons with handicaps. The Community Development Code of Edmonds, Washington, provides that a single-family dwelling can be occupied only by a "family," defined as related persons or a group of five or fewer unrelated persons. Oxford House operates a group home for ten to twelve adults recovering from alcoholism or drug addiction in a neighborhood zoned for single-family residences. The Fair Housing Act prohibits discrimination in housing against persons with handicaps, and requires "reasonable accommodations in rules, policies, practices or services" when necessary to afford the handicapped "equal opportunity to use and enjoy a dwelling." It was stipulated that addicts are "handicapped" within the meaning of the FHA. The district court held the Code provision came within an exemption from the FHA for a "reasonable . . . restriction regarding the maximum number of occupants permitted to occupy a dwelling." The Ninth Circuit reversed that decision, and the Supreme Court affirmed. Justice Ginsburg, writing for the Court, found that the Code definition describes who may compose a family unit, rather than the maximum number of occupants a dwelling unit may house. Such a family composition rule cannot qualify as a restriction "regulating the maximum number of occupants permitted to occupy a dwelling." That exemption should be read narrowly to preserve the operation of the nondiscrimination policy. The Court found that Congress had acted "against the backdrop of an evident distinction between municipal land use restrictions and maximum occupancy restrictions." Land-use restrictions, by "reserving land for single-family residences preserve the character of neighborhoods, securing 'zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.'" Maximum occupancy restrictions, on the other hand, "cap the number of occupants per dwelling, typically in relation to available floor space or the number and type of rooms." They "ordinarily apply uniformly to all residents of all dwelling units" and are designed "to protect health and safety by preventing dwelling overcrowding." The FHA's exemption encompasses maximum occupancy restrictions, but not "family composition rules typically tied to land use restrictions." Here, there was no limit on the number of occupants so long as they were related. The zoning code provision defining "family" is not a maximum occupancy restriction exempt from the FHA. Justice Thomas, joined by Justices Scalia and Kennedy in dissent, deemed the Code provision a "restriction regarding" the maximum number of occupants. Taxation Oklahoma Tax Comm'n v. Chickasaw Nation, 115 S. Ct. 2214 (decided June 14), presented two questions: (1) Can Oklahoma impose its motor fuels excise tax on fuels sold by Chickasaw Nation stores on tribal trust land? (2) Can Oklahoma impose an income tax on employee-members of the tribe who reside within the state outside Indian country? Justice Ginsburg, for a unanimous Court, answered "no" to the first question, finding the deciding factor to be the legal incidence of the tax. Because fuel distributors are required to remit the tax to the Tax Commission "on behalf of a licensed retailer," the legal incidence of the tax is on the retailer. The Court divided 5 to 4 on the second question. Justice Ginsburg's majority opinion answered "yes," on the ground that a state may tax all the income of its residents, including income earned outside the taxing jurisdiction. Justice Breyer, joined by Justices Stevens, O'Connor, and Souter, dissented, believing that imposition of the tax was precluded by the Treaty of Dancing Rabbit Creek. In National Private Truck Council v. Oklahoma Tax Comm'n, 63 U.S.L.W. 4632 (decided June 19), Oklahoma taxes had been successfully challenged under the Commerce Clause, and refunds were ordered. The Oklahoma Supreme Court refused injunctive or declaratory relief and denied attorney fees. Because state law provided an adequate remedy, a federal court injunction would be precluded under the Tax Injunction Act, and "intrastate uniformity" called for application of the same principle in the state court. The Supreme Court affirmed, unanimously. Justice Thomas, writing for the Court, noted that federal courts are reluctant to interfere with state tax collection. Section 1983 of 42 U.S.C does not authorize damages, or injunctive or declaratory relief against a state tax where there is an adequate state remedy. Justice Kennedy, concurring, expressed the view that 1983 was not intended for Commerce Clause claims at all. Voting Rights In United States v. Hays, 63 U.S.L.W. 4679 (decided June 29), plaintiffs sued to challenge Louisiana's Act 42, which created an electoral district drawn to create a black majority. The district court enjoined enforcement of the state's redistricting plan. While an appeal was pending, Louisiana enacted a new redistricting plan, Act 1, which was cleared by the Attorney General. After remand of the case for reconsideration in light of the new Act, the district court held Act 1 unconstitutional. The Supreme Court, without dissent, vacated that decision. Justice O'Connor, writing for the Court, held that because, under the new plan, the plaintiffs no longer resided in the district whose creation they sought to challenge, they lacked standing. Justice Stevens and Justice Ginsburg concurred in the judgment. Justice Breyer, joined by Justice Souter, wrote a separate concurring opinion. Beate Bloch is a legal writing consultant in Washington, DC.