PAULA KADRMAS AND SARITA KADRMAS, A MINOR BY HER NEXT FRIEND, PAULA KADRMAS, APPELLANTS V. DICKINSON PUBLIC SCHOOLS, ET AL., No. 86-7113 In the Supreme Court of the United States October Term, 1987 On Appeal from the Supreme Court of North Dakota Brief for the United States as Amicus Curiae Supporting Appellees TABLE OF CONTENTS Question Presented Interest of the United States Statement Introduction and summary of argument Argument: Appellees' school bus user fee system does not violate the Equal Protection Clause of the Fourteenth Amendment A. A user fee system is a rational, nondiscriminatory means of funding the cost of delivering public goods and services B. North Dakota's system of permitting nonreorganized districts to impose user fees for school bus transportation is rational C. Appellees' school bus user fee system should not be subjected to heightened judicial scrutiny because of the effect that scheme has on the poor Conclusion QUESTION PRESENTED The United States will address the following question: Whether the user-fee system authorized by North Dakota state law and implemented by the Dickinson Public School system, under which the parents of schoolchildren must pay a graduated, per student, non-waivable fee in order for their children to use the school bus system, violates the Equal Protection Clause of the Fourteenth Amendment. INTEREST OF THE UNITED STATES This case presents the question whether a State may condition participation in the use of a publicly provided service on the payment of a "user fee," i.e., a charge paid by an individual for the use of a publicly provided good or service, such as transportation, that also is (or might be) funded by the government from its general revenues. The Court's resolution of that question could affect the federal government in several ways. The federal government by statute conditions access to some federal programs and services on the payment of small but not insignificant fees. /1/ Several federal statutes authorize federal agencies to impose user fees. /2/ Also, the federal government provides substantial amounts of financial assistance to States for services for which the States are directed or permitted by federal law to require some form of contribution by those who use the service. /3/ Further, several federal statutes subject certain activities to excise taxes, which are similar to user fees. /4/ Finally, the Office of Management and Budget (OMB) has recently proposed a revision of federal policy authorizing federal agencies to charge for the use of government services or property. OMB Circular No. A-25, User Charges, 52 Fed. Reg. 24890 (1987) (proposed July 1, 1987). The proposed policy would require that a user fee be assessed against "each identifiable recipient for benefits derived from federal activities beyond those received by the general public." Ibid. /5/ The Court's decision in this case could affect the federal government's ability to impose direct or indirect user fees as a condition of participation in federal or federally-funded programs. That result would limit the government's flexibility in conducting these programs and narrow the range of choices open to Congress and federal agencies. STATEMENT 1. North Dakota state law provides for the consolidation or "reorganization" of local school districts at their option. Reorganization generally tends to expand a district's pupil population and its tax base and to promote larger and more centralized schools. These economies of scale, however, require more students to travel greater distances. Reorganized districts are required under state law to provide cost-free transportation to schoolchildren or to reimburse their travel expenses. N.D. Cent. Code Section 15-27.3-10 (Supp. 1978) (reprinted in J.S. App. A45). Nonreorganized districts may choose whether or not to provide transportation to schools, and may charge a user fee for any such service. N.D. Cent. Code Section 15-34.2-06.1 (1981 & Supp. 1987). The Dickinson School District is not reorganized (J.A. 36), and has chosen to maintain a school bus transportation system. The system, including a fee schedule, was approved by local voters in 1973 (J.A. 33, 36, 44). But transportation is available only to students who attend public or parochial kindergarten or elementary schools more than three miles from their homes, or who attend secondary schools more than four miles from their homes (J.A. 33, 36, 44, 45) A graduated transportation fee is charged for bus service to and from school: $97 per year for one child, $150 per year for two children, up to a maximum of $315 for five or more children (J.A. 16, 36, 44). The fee for one-way service or for children attending kindergarten is half the above rate, and no fee is charged to any special education or handicapped student (J.A. 16, 24). The fee does not depend on the distance travelled by individual users, and does not vary with a family's income or ability to pay. /6/ The user fee generates approximately 11% of the total cost for the service, while the remaining 89% comes from state and local tax revenues (J.A. 45, 54). /7/ 2. The appellants, Paula Kadrmas and her daughter Sarita, a schoolchild enrolled in the Dickinson Public School system in North Dakota, live in a rural area near the town of New Hradec, which is 16 miles from the Roosevelt Public School, where Sarita attends classes. J.A. 35, 43. Appellant's immediate family has a gross income at or near the poverty level, as defined by state eligibility requirements for certain programs (J.A. 36-37, 46). Appellants' family moved to their present residence near New Hradec in 1981 (Appellants' Br. 3), at which time the home-to-school busing service and fee system were in force (J.A. 31). Appellant Paula Kadrmas was aware at the time that Sarita would have to attend school in Dickinson (J.A. 32), and she paid the busing fee in the years before 1985 (J.A. 30, 31). /8/ Appellants refused to pay the busing fee for the 1985-1986 school year and were therefore denied transportation. Appellants made private transportation arrangements during the school year, and appellant Sarita Kadrmas attended school on a regular basis throughout the year (J.A. 32, 37; see J.A. 45). Apart from their co-plaintiffs (who are no longer parties here), no other Dickinson School District parent refused to pay the busing fee, and no child was denied the opportunity to attend public school (J.A. 37). 3. Appellants brought suit in North Dakota state court, alleging that the state's policy of permitting non-reorganized districts to charge fees for transportation to public schools violated the state and federal constitutions. The trial court rejected several state constitutional challenges to the scheme adopted by the state legislature (J.A. 38-41). It also rejected appellants' claims that the user fee system violated the Equal Protection Clause of the Fourteenth Amendment. /9/ The transportation fee charged by the Dickinson School District was rational, the court explained, because the amount of fees collected may not exceed the actual cost of the transportation less the amount subsidized by the State, and because the graduated fees charged to families of schoolchildren was a reasonable way to charge for use of the bus service (J.A. 41). The Supreme Court of North Dakota, by a divided vote, affirmed (J.A. 53-68). It ruled that appellants did not have the right under the state constitution to free transportation to and from public school (J.A. 54-61). As the court explained, "transportation is not a necessary element of the educational process, and it is not an integral part of the educational system to which the (state) constitution refers in requiring the Legislature to provide 'a uniform system of free public schools.'" (J.A. 60). The court also found that the provisions of state law did not violate the Equal Protection Clause of either the state or federal Constitution, concluding that the user fee system was a rational means of funding public services and did not unconstitutionally discriminate against indigents or against the residents of nonreorganized school districts (J.A. 61-65). "A statutory scheme under which a school district offers to provide student transportation at considerably less expense to the parent than self-transportation would entail does not constitute a deprivation which offends either federal or state equal protection rights" (J.A. 63). The difference between reorganized and nonreorganized school districts was also "rationally related to a legitimate government purpose," because its "obvious purpose" was "to encourage school district reorganization with a concomitant tax base expansion and an enhanced and more effective school system" (J.A. 64). /10/ INTRODUCTION AND SUMMARY OF ARGUMENT Appellants offer a constitutional proposition which is at once novel and alarming in its implications for the authority of governments to choose both the objects of public expenditures and the means of financing them. If appellants are correct, then any uniform exaction -- here, a user fee, but the point would hold as well for sales taxes, excise taxes, or any nonprogressive tax in general -- may run afoul of the Equal Protection Clause because such an exaction bears more heavily on those with less resources to meet it. Indeed, appellant's propositions would be applicable as well even to graduated income tax schemes, since a question might always be raised as to the degree of progressively and the appropriateness of including or excluding some system of exemptions. A fee uniformly charged to all users of a particular good or service does not discriminate against those with less resources just because such a fee is harder to bear as one has less money to bear it. That a good or service is provided by some unit of government carries no general constitutional obligation that it be provided free of charge and financed out of general revenues. Nor can a contrary conclusion be made more plausible by suggesting that those with less resources are pro tanto a suspect category so that measures which may be thought to bear more heavily on them must carry some special burden of justification. Not only is financial capacity a matter of infinite gradations so that the usual terms of equal protection analysis have no way to take a logical grip, but also any such proposition could not be confined to user fees but would have to extend to any governmental exaction. There are some facilities which government is obligated to make available without charge to those unable to pay for them: e.g., defense counsel in a criminal prosecution, transcripts in a criminal appeal, and access to court where, as in divorce, government controls a person's status. Bus transportation to and from school bears none of the indicia whereby such provision is constitutionally mandated. The government here is not acting coercively towards an individual or determining his legal status. Nor does Plyler v. Doe, 457 U.S. 202 (1982), support appellants' claim. In Plyler, the children were complaining of a non-uniform fee which specifically discriminated against a class with several characteristics of a suspect category, and in the context of such discrimination the right to education assumed sufficient significance to vitiate the explicitly discriminatory scheme. Here, the scheme is nondiscriminatory on its face, and both the class and any discrimination must be found in the unintended differential burden a uniform fee imposes on a person with less ability to pay. Whatever the constitutional status of the right to a primary or secondary education, such a right cannot be thought to be implicated here. The user fee in question is not imposed on school attendance but on transportation to and from school. While it is obviously true that reaching school is a precondition to attending school, no decision of this Court has ever suggested that such preconditions to the enjoyment of a right must be subsidized to the same extent that the right itself must be accorded. That is understandable; just as a child's enjoyment of educational opportunities is impaired by difficulties in reaching school, so, too, they are impaired by poor diet, clothing, and living conditions. Yet the delivery of these goods is a matter of the community's political, not its constitutional, obligations, and it would be odd, to say the least, to single out school bus transportation for special judicial attention. ARGUMENT APPELLEES' SCHOOL BUS USER FEE SYSTEM DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT A. A User Fee System Is A Rational, Nondiscriminatory Means Of Funding The Cost Of Delivering Public Goods And Services In a mixed private and public economy, the government will oftentimes decide to supply a particular service, such as transportation, either as a competitor to the private sector (e.g., buses) or as a monopolist (e.g., subways or bridges). Public services can be paid for in several ways. Government can use the income received from general tax revenues or from the sale of public bonds, it can spend the income generated from the sale of other publicly controlled goods (such as licenses), it can charge a fee to cover the costs of delivering a service, or it can apply a combination of the above approaches. Government can also adopt one approach to pay for the construction or establishment of a public facility (such as issuing bonds to pay for the cost of building a bridge), but use a different means of covering the cost of operating and maintaining that facility (such as charging toll). Decisions whether and how much of a service to provide, and how any such service will be funded, are the stuff of the demoncratic political process. Choices among competing priorities are possible only on an assessment of public preferences based on the perceived needs of a particular political unit. There is no one correct way to make these trade-offs, and any resolution will unavoidably be favored by some and disfavored by others. Government therefore must have considerable latitude in accommodating these needs. As the Court explained in Dandridge v. Williams, 397 U.S. 471, 485 (1970) (citation omitted), "(t)he problems of government are practical ones and may justify, if they do not require, rough accommodations -- illogical, it may be, and unscientific. A user fee system does not "classify" among or "discriminate" against any category of individuals. A flat user fee treats everyone alike (as does a sales tax). As long as a user fee system is not applied in a manner that arbitrarily singles out a particular person or class of individuals (see Yick Wo v. Hopkins, 118 U.S. 356 (1886)), a user fee system does not "discriminate" on any ground other than the uncontroversial principles that those who benefit from a service may be asked to pay for it. Even if a user fee system does classify among individuals in some way, such a system is nonetheless valid under the Constitution. The Court has consistently recognized that, absent a convincing reason to believe that the normal operation of the political process has been unconstitutionally skewed, decisions about how to collect or spend public revenues should be left to the political branches of government. It is well settled that social welfare legislation -- i.e., legislation implementing political decisions allocating the benefits and burdens of government's fiscal and social policy -- need withstand only a minimal level of scrutiny in order to survive a due process or equal protection challenge. E.g., Bowen v. Gilliard, No. 86-509 (June 25, 1987); Schweiker v. Hogan, 457 U.S. 569 (1982); Jefferson v. Hackney, 406 U.S. 535 (1972); Dandridge v. Williams, supra. Governments have the widest latitude to "concentrate limited funds where the need is likely to be greatest" (Califano v. Boles, 443 U.S. 282, 296 (1979)), and where the benefits of public expenditures are likely to be most fruitful. The decisions implemented in social welfare legislation will therefore be sustained as long as the legislature's judgment is not patently arbitrary. E.g., Bowen v. Gilliard, slip op. 10-11; Bowen v. Owens, 476 U.S. 340 (1986); Califano v. Aznavorian, 439 U.S. 170 (1978); Flemming v. Nestor, 363 U.S. 603 (1960). A user fee system for financing part of the cost of the goods and services that government delivers is clearly valid under the Constitution because it rationally combines elements of public finance and private choice. It places an increased share of the cost of such service on those who most directly benefit from it, and thus lowers the tax burden which must otherwise be borne by the general public. By looking for payment to those persons who use a service, a user fee system, by definition, operates in a rational manner. As in the operation of the private market, a user fee system tends to minimize the commitment of resources to activities whose cost exceeds their social utility. B. North Dakota's System of Permitting Nonreorganized Districts To Impose User Fees For School Bus Transportation Is Rational 1. A school bus transportation user fee is clearly an example of rational public financing. It has never been claimed that local governments are constitutionally required to create a transportation system for schoolchildren (or the general public) at all, or that they are required to subsidize the use of private bus services. Municipalities can channel their funds into other programs and leave to parents the responsibility for transporting their children to school. If the government does decide to operate a bus service itself in order, for example, to serve areas that existing bus lines will not reach, it follows that the government should be allowed the choice whether to pay for that service out of its general tax revenues, or by a fee charged to the persons who use that service, or (as here) through some combination of the two. Thus, the North Dakota Supreme Court correctly held that the user fees were "rationally related to the legitimate governmental objective of allocating limited resources" (J.A. 64). In placing a small portion of the cost of bus transportation on those who use that service, the user fee system allows limited funds to be spent elsewhere. /11/ The North Dakota Supreme Court was also correct in characterizing the challenged busing policy as "purely economic legislation" (J.A. 65). Its decision is consistent with the decisions of this Court deferring to the social and economic policy judgments of state and local governments. See, e.g., Idaho Dep't of Employment v. Smith, 434 U.S. 100 (1977); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976); James v. Valtierra, 402 U.S. 137 (1971). 2. The State has also articulated a rational basis for the existence of two types of school districts: reoganized districts, which must provide free transportation, and nonreorganized districts, which need not provide transportation and may charge a fee if they choose to provide it. That scheme is the result of two competing sets of concerns, both of which influenced the State legislature. On the one hand, the legislature had an interest in encouraging reorganization, because it would expand the physical size, pupil populations, and tax bases of school districts, thus improving their operational and fiscal soundness. Such reorganization would result in larger, more cost-efficient central schools. The location of such schools, however, would often require children to travel greater distances, thus justifying the mandatory provision of free bus transportation in order to make the reorganization plan acceptable to many parents (State's Mot. to Dismiss 12). On the other hand, the legislature chose not to make reorganization mandatory. The legislature allowed nonreorganized districts to exist as a matter of local option, and left such nonreorganized districts free to make their own decisions about whether to provide bus transportation and whether to charge for such transportation as they do provide. Although appellants might have preferred a centrally-imposed, uniform system for all school districts, the State did not act irrationally in trying to accommodate those localities that still desire, in view of their particular circumstances, to remain unconsolidated. Cf. Hazelwood School Dist. v. Kuhlmeier, No. 86-836 (Jan. 13, 1988), slip op. 12; San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 49-53 (1973). The fact that an accommodation of local preferences results in differential treatment of persons in reorganized and nonreorganized districts does not render the overall scheme irrational; "the validity of a broad legislative classification is not properly judged by focusing solely on the portion of the disfavored class that is affected most harshly by its terms." Schweiker v. Hogan, 457 U.S. at 589; see also Vance v. Bradley, 440 U.S. 93, 108-109 (1979). The question is whether the underlying state policy is rational. The state's policy here meets that test. C. Appellee's School Bus User Fee System Should Not Be Subjected To Heightened Judicial Scrutiny Because Of The Effect That Scheme Has On The Poor Appellants and amici contend that the user fee system must pass heightened judicial scrutiny, because it imposes a financial burden on lower-income rural families, /12/ and because it unjustifiably hampers their ability to enjoy a free public education. Neither claim has merit. 1. Appellants' claim that the evenhanded application of this user fee has an adverse impact on indigents plainly falls far short of asserting a constitutional violation. This Court has consistently rejected arguments that indigency is a suspect category and that economic legislation is unconstitutional under the Equal Protection Clause if its impact varies with differences in financial resources. See, e.g., Harris v. McRae, 448 U.S. 297, 322-323 (1980); Maher v. Roe, 432 U.S. 464, 470-471 (1977); Rodriguez, 411 U.S. at 24, 28; Ortwein v. Schwab, 410 U.S. 656, 660 (1973); United States v. Kras, 409 U.S. 434, 446 (1973); Dandridge v. Williams, supra. Although there are particular instances where the government may affect personal rights in a direct way, so that the government may be constitutionally required to forgo charging a fee at all, to waive an otherwise uniform fee, or to provide funds to assure that indigents are not foreclosed from participating fully in a particular process (e.g., Boddie v. Connecticut, 401 U.S. 371 (1971) (divorce filing fees); Harper v. Virginia Board of Elections, 383 U.S. 663 (1966) (poll taxes); Gideon v. Wainwright, 372 U.S. 335 (1963) (defense counsel in a criminal prosecution); Griffin v. Illinois, 351 U.S. 12 (1956) (transcript of criminal trial)), those instances are extremely limited. See Harris v. McRae, supra (no right to funding for abortion); United States v. Kras, supra (no right to a waiver of filing fees for voluntary bankruptcy). Indeed, a user fee system would be valid even if it had an adverse economic effect on a racial minority -- unless the government "selected or reaffirmed" the fee "at least in part 'because of,' not merely 'in spite of,' its adverse effects" upon that minority. Personnel Adm'r v. Feeney, 442 U.S. 256, 279 (1979); see also Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976). It follows a fortiori that a user fee is not unconstitutional for the reason alone that -- like any uniform pricing mechanism -- it has an adverse economic impact on those with less resources. /13/ Any other conclusion would be a major departure from this Court's precedents holding that social and economic legislation need only be rational to survive an equal protection challenge. There exists an extensive body of legislation intended to benefit the urban and rural poor, which strongly militates treating indigency as a suspect or a quasi-suspect category. See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 443-444 (1985). /14/ Nor are indigents so politically powerless as to comprise a "discrete and insular" minority that is unfairly denied an opportunity to form successful electoral coalitions. /15/ Finally, unlike race, poverty is neither an "immutable" characteristic nor one that is even defined by any well-established, discernible contours. Although there are different statutory and administrative determinations, such as state eligibility tests that place appellants here at or near the "poverty line" (Appellants' Br. 4; cf. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. at 445), these determinations can (and do) vary with the purpose for which they are made (cf. Jefferson v. Hackney, supra), and with the legislature, agency, or jurisdiction that makes them. It would be incongruous to treat such shifting and uncertain boundaries as defining a constitutionally "suspect" or "quasi-suspect" class. Treating wealth disparities as a suspect classification, and viewing user charges as discriminatory in relation to that classification, would open to constitutional and therefore judicial scrutiny a vast amount of legislation, from gasoline taxes to utility charges or driver's license license fees, all of which bear more heavily on those with fewer resources. Indeed, all legislative choices regarding the redistribution of wealth -- including the decision to do nothing /16/ -- would fall within the sweep of the principle appellants must advance to sustain their challenge to this scheme. Judicial attempts to remedy the disparate impact on the poor of legislation such as that involved here could be ineffective, if not counterproductive. Mandating transfer payments in order to protect one class of recipients could have unintended harmful effects on the beneficiaries of other equally desirable social programs. For example, a decision to invalidate appellee's user fee policy would leave appellees with a variety of possible responses, some of which could much further worsen the situation of the rural poor. Appellees might reduce expenditures on other educational or social services. Appellees might discontinue school bus service altogether, or eliminate home-to-school service and resume station-to-school service for all children. Or they might limit qualification for free bus service to some defined degree of indigency. And if appellees chose to offset the revenue loss by increasing taxes, that decision (depending on the form of tax chosen) might increase the burden on all taxpayers, including the poor -- unless appellants were to pursue the logic of their argument to its extreme and demand judicial scrutiny of the scope and progressively of particular tax schemes. /17/ In the final analysis, appellants' argument that they have the right to be exempted from a user fee requirement because of the financial burden that fee imposes on the poor is practically indistinguishable from a claim that appellants have a substantive constitutional right to an income transfer in the amount of that fee. Put another way, appellants' claim is essentially identical to a claim by any parent who lives at the poverty level that he has a substantive constitutional right to subsidized bus or subway tokens so that his children can ride to public school. Providing free transportation to and from school may be sound social policy, but it is not one to which the Equal Protection Clause is addressed. See Harris v. McRae, 448 U.S. at 326. 2. Appellants attempt in various ways (Appellants' Br. 13-17, 22, 24-25) to predicate their claim of a federal constitutional violation upon the fundamental place of education in society and under state law. This Court's decisions concerning the funding of public education, however, do not suggest that the user fee system at issue here should be examined under anything other than a test of minimum rationality. In San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973), the Court considered the constitutionality of Texas' system of financing the operation of its public schools in part from local sources of revenue, particularly property taxes. Due to this funding system, there were substantial interdistrict disparities in public school expenditures. In rejecting an equal protection challenge to the state's system of public school finance, this Court rejected the claims that wealth is a suspect category and that education is a fundamental right. 411 U.S. at 18-40. Instead, the Court held that a school financing scheme is constitutional if it bears "some rational relationship to a legitimate state purpose." Id. at 44. The Texas school financing system was valid, the Court concluded, because it permitted and encouraged a large measure of local control over public school education. Nor does this Court's decision in Plyler v. Doe, 457 U.S. 202 (1982), support appellants. In Plyler, the Court held that the complete denial of state funding for, and the imposition of a tuition charge on, illegal alien schoolchildren was unconstitutional. In so ruling, the Court applied an intermediate level of scrutiny to the state scheme. Id. at 217-218 n.16, 223-224, 230; id. at 232-235 (Blackmun, J., concurring); id. at 238-240 (Powell, J., concurring). The classification that led to that scrutiny, however, was the status of the students as children of parents who had entered the country illegally; unlike the children here, they alone were charged tuition. The Court therefore drew an analogy to the cases in which it had applied an intermediate level of scrutiny to classification based on illegitimacy, because illegal alien schoolchildren were also penalized by the tuition fee for the misconduct of their parents. /18/ Moreover, in addition to being illegal aliens, the children in Plyler were part of several different and overlapping classes, each of which bore some of the historical attributes of a "suspect" category. They were predominantly Mexican, a category defined by national origin that has persistently encountered discrimination in Texas. See Hernandez v. Texas, 347 U.S. 475, 479-480 (1954). They were minors, and thus unable to vote, and the form of vicarious representation ordinarily available to minors -- parential suffrage -- was not (and could not become) available to them, because their parents were illegal aliens. Because the Court reasonably expected the children to remain in this country, the stigma of lasting illiteracy, which the Court foresaw as the result of the state's imposition of tuition fees (Plyler, 457 U.S. at 223), threatened to make the children into a permanent underclass, in violation of the Fourteenth Amendment's intent to abolish caste legislation. See id. at 213 ("The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation."). Appellants also rely on the bootstrap argument that public education triggers heightened judicial scrutiny under the federal constitution because it is a fundamental right and the object of great public attention under North Dakota law. /19/ Public education, however, is not a fundamental right guaranteed by the federal constitution (Rodriguez, 411 U.S. at 35-37; Plyler, 457 U.S. at 221, 223), and it cannot be made so by the way it is treated under state law. Whether a "right" is fundamental under the federal Constitution turns on whether it is "explicitly or implicitly guaranteed by the Constitution." Rodriguez, 411 U.S. at 33-34. Moreover, under appellants' theory, the federal constitution would require a state to spend additional funds on public education precisely because the state is itself constitutionally committed to education and already spends generously on educational programs. That outcome would perversely restrict the ability of state and local governments to control funding and operation of a public school system. Assuming an affirmative answer to a question that the Court has left open -- whether programs resulting in the denial of a minimally adequate education must be subjected to heightened constitutional scrutiny /20/ -- it does not follow that the government is constitutionally required to subsidize any facility associated with the enjoyment of educational opportunities. Such constitutionally guaranteed facilitation would surely have to extend to include the provision of food, clothing, shelter, and other prerequisites to the ability to make use of educational opportunities. No decision of this Court remotely supports such a proposition, and the case law is, in fact, to the contrary. Harris v. McRae, 448 U.S. at 316 ("(A)lthough government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category."). See Shaffer v. Board of School Directors of the Albert Gallatin Areas School Dist., 687 F.2d 718 (3d Cir. 1982), cert. denied, 459 U.S. 1212 (1983) (neither the Due Process not the Equal Protection Clause requires government to provide free transportation to and from public school); cf. Sutton v. Cadillac Area Public Schools, 117 Mich. App. 38, 323 N.W.2d 582 (1982) (same result under state constitution); see also, e.g., Regan v. Taxation With Representation, 461 U.S. 540, 545-549 (1983) (government is not required to fund the exercise of First Amendment rights); Maher v. Roe, supra (upholding a state's decision to fund the expenses of childbirth but not abortion). /21/ Finally, the fact that free bus transportation is provided in some but not all districts does not render the state financing scheme invalid. It is clear that the Constitution is not violated by even significant variations in the quality of teachers, school facilities, and the like. Rodriguez, 411 U.S. at 36. It follows that interdistrict differences in the provision of free school transportation (or other services, such as vaccinations or school lunches) is plainly constitutional, at least where, as here, they stem from variations in school funding and local spending decisions. Id. at 49; see Papasan v. Allain, No. 85-499 (July 1, 1986), slip op. 21. CONCLUSION The judgment of the Supreme Court of North Dakota should be affirmed. Respectfully submitted. CHARLES FRIED Solicitor General WM. BRADFORD REYNOLDS Assistant Attorney General DONALD B. AYER Deputy Solicitor General ROGER CLEGG Deputy Assistant Attorney General PAUL J. LARKIN, JR. Assistant to the Solicitor General DAVID K. FLYNN ROBERT J. DELAHUNTY Attorneys JANUARY 1988 /1/ See, e.g., United States v. Kras, 409 U.S. 434 (1973) (bankruptcy filing fee); 5 U.S.C. (& Supp. IV) 552(a)(2) and (4)(A) (Freedom of Information Act fees); 28 U.S.C. (& Supp. III) 1911 et seq. (federal filing fees); 22 C.F.R. Pt. 22 (passport fees). /2/ See, e.g., 31 U.S.C. 9701 (authorizing heads of federal agencies to charge for "a service or thing of value provided by the agency"); 43 U.S.C. (& Supp. III) 1734, 1740, 1764(c) and (g) (authorizing the Secretary of the Interior to recover reasonable costs of processing right-of-way applications); Section 3401 of the Omnibus Budget Reconciliation Act of 1986, Pub. L. No. 99-509, 100 Stat. 1890-1891 (Authorizing the Federal Energy Regulatory Commission to impose reasonable user fees); Section 7601 of the Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, 100 Stat. 146-147 (authorizing the Nuclear Regulatory Commission to charge reasonable user fees); Section 7005 of the Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, 100 Stat. 140-141 (to be codified at 49 U.S.C. App. 1682a) (authorizing the Secretary of Transportation to impose user fees on pipeline operators transporting hazardous materials). /3/ See, e.g., 42 U.S.C. 1395e (Medicare Part A); 42 U.S.C. (& Supp. III) 1395l(b) (Medicare Part B); 42 U.S.C. 1396o (Medicaid); 12 U.S.C. (& Supp. IV) 1709(c) (residential mortgage insurance premium). /4/ See, e.g., 26 U.S.C. (& Supp. III) 4251 (excise tax on telephone communications); 26 U.S.C. (& Supp. III) 4261 et seq. (excise tax on air travel); 26 U.S.C. (& Supp. III) 5001 et seq. (excise tax on distilled spirits, wines, and beers); 26 U.S.C. (& Supp. III) 5701 et seq. (excise tax on cigars, cigarettes, smoking tobacco, etc.). /5/ The objectives of this policy are (52 Fed. Reg. at 24890): a. To ensure that each service, sale, or use of Government property or resources provided by an agency to specific recipients be self-sustaining. b. To promote efficient allocation of the Nation's resources by establishing charges for special benefits provided the recipient that are at least as great as costs to the Government of providing the special benefits; and c. To allow the private sector to compete without disadvantage in supplying comparable services, resources, or property where appropriate. /6/ The school district's "Transportation Agreement" provides that "(t)he bus fee is due and payable at registration time unless prior arrangements are approved through the administration office" (J.A. 20, 36). It is not apparent from the terms of the agreement whether the provision for "prior arrangements" is designed to allow for either a partial or complete waiver of payments. Appellant Paula Kadrmas testified that she was aware that the $97 annual fee need not be fully paid in advance, and she, in fact, paid the fee in installments in other years (J.A. 31-32). There was also testimony from a Dickinson School District official that the district tried to accommodate persons who had not fully paid fees from earlier years, and that the district had not gone to court over delinquent fees (J.A. 34). /7/ For example, in the 1984-1985 school year, the district's busing costs amounted to $312,147, of which about $244,000 was defrayed by the State, about $34,000 was paid from local property taxes, and about $34,000 was collected through busing fees (J.A. 33-34, 45). State law requires that the total fees collected not exceed the difference between the average cost of the service and the state subsidy. N.D. Cent. Code Section 15-34.2-06.1 (1981 & Supp. 1987). /8/ Paula Kadrmas was, however, in arrears for prior years (J.A. 47). /9/ The court concluded that the difference between reorganized and nonreorganized school districts was not irrational, and ruled that the user fee system did not unconstitutionally discriminate against appellants on the basis of wealth (J.A. 40-41). The court treated only the second of these issues as having been raised under the federal Constitution (J.A. 41). /10/ The dissent concluded that free school transportation is not constitutionally required, but found that the application to appellants of the appellees' school bus user fee violated the state constitution (J.A. 65-68). /11/ See, e.g., Heckler v. Matthews, 465 U.S. 728 (1984) (sustaining amendments to social security program primarily designed to hold down costs); James v. Valtierra, 402 U.S. 137, 143 (1971); Ortwein v. Schwab, 410 U.S. 656, 660 (1973). /12/ Although appellants do not couch their argument in precisely those terms, we believe that the above description is a fair reading of their claim (Br. 20) that "(a)t the heart of this challenge is the fact that North Dakota is punishing a group of students, who bear no responsibility for their status, nor have the means to change it, in an effort to coerce for district to organize and expand." Appellants therefore seem to claim that the State's classification is invalid because, for insufficient reasons, it discriminates against a class defined, at least in part, by "immutable" characteristics similar to those associated with a "suspect" category. That claim, in turn, amounts to an assertion that the class in question is "quasi-suspect." /13/ The Court has ruled that legislation that on its face imposes a restriction measured by lower income status is not invalid under the Equal Protection Clause if it is rationally defensible. In James v. Valtierra, supra, the Court sustained a state constitutional requirement that low-income housing projects be approved by a majority of the voters at a community referendum. This Court ruled that the state procedure "ensures that all the people of a community will have a voice in a decision which may lead to large expenditures of local governmental funds for increased public services and to lower tax revenues." 402 U.S. at 143 (footnote omitted). /14/ Hour and wage legislation, legislation protecting collective bargaining, social security, the farm program, the creation of the Office of Economic Opportunity, fair employment laws, manpower training programs, unemployment compensation, public assistance, public housing, public education, subsidi(z)ed health care, etc., have all had as their rationale at one time or another the need to help the poor." Winter, Poverty, Economic Equality, and the Equal Protection Clause, 1972 Sup. Ct. Rev. 41, 98. Other federal programs designed to benefit the rural poor include funding for rural electrification, see 7 U.S.C. (& Supp. IV) 901 et seq., aid for farm housing, see 42 U.S.C. (& Supp. III) 1471 et seq., and health care for migrant agricultural workers, see 42 U.S.C. 254b. /15/ See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938); cf. City of Cleburne v. Cleburne Living Center, Inc., 472 U.S. at 445. Until fairly recently, rural voters, including the rural poor, enjoyed a built-in legislative advantage over urban dwellers, since rural communities were typically (albeit unconstitutionally) overrepresented in the political process. See Baker v. Carr, 369 U.S. 186, 248 n.4 (1962) (Douglas, J., concurring); Gray v. Sanders, 372 U.S. 368, 379 (1963); id. at 386 (Harlan, J., dissenting). /16/ Legislative "inactions" may also have a discernible wealth-based impact without being constitutionally invalid. Cf. Gordon v. Lance, 403 U.S. 1 (1971) (a state can constitutionally require referendum approval by a supermajority of voters before deciding to incur bonded indebtedness). /17/ Appellants contend (Appellants' Br. 27) that there are "many viable alternatives to non-waivable busing fees." But even if appellants were right that their preferred alternatives would be better public policy than the system chosen by local voters, it does not follow that the user fee is so "irrational" as to be unconstitutional. Moreover, a decision that the user fee was unconstitutional would not bind the appellees to choose one of the options that appellants have sketched. Appellees might instead select one of the alternatives we have mentioned above. /18/ Plyler, 457 U.S. at 220 (citing Trimble v. Gordon, 430 U.S. 762 (1977), and Weber v. Aetna Casualty & Sur. Co., 406 U.S. 164, 175 (1972)); Plyler, 457 U.S. at 238 (Powell, J., concurring) ("(t)he classification at issue deprives a group of children of the opportunity for education afforded all other children simply because they have been assigned a legal status due to a violation of law by their parents"). /19/ Appellants appear to suggest that education, although not a fundamental right under the federal Constitution, is sufficiently important to be ranked as a "quasi-fundamental" right. The Court has quite properly never held that there exists such a category as "quasi-fundamental" rights. See Rodriguez, 411 U.S. at 31 (quoting Shapiro v. Thompson, 394 U.S. 618, 661 (1969) (Harlan, J., dissenting) ("If the degree of judicial scrutiny of state legislation fluctuated, depending on a majority's view of the importance of the interest affected, we would have gone 'far toward making the Court a "super-legislature."'"). /20/ See Papasan v. Allain, No. 85-499 (July 1, 1986), slip op. 19; Rodriguez, 411 U.S. at 23, 25 n.60, 36-37; see also Plyler, 457 U.S. at 234 (Blackmun, J., concurring) ("classifications involving the complete denial of education are in a sense unique"); Shapiro v. Thompson, 394 U.S. at 633. /21/ The case law seems generally to agree that programs relating to such education-related benefits are not constitutionally suspect because they have disparate wealth-based effects. For instance, the courts have held that it does not deny equal protection for a school lunch program to operate so as to favor schools with existing kitchen facilities (and hence, assertedly, with greater resources), see Briggs v. Kerrigan, 431 F.2d 967, 969 (1st Cir. 1970); or for the antifraud regulations governing a school meals program to work an incidental hardship on households of poor illegal aliens, see Alcaraz v. Block, 746 F.2d 593, 604-606 (9th Cir. 1984); or for NCAA regulations to bar certain types of outside aid for participants in intercollegiate athletic programs, despite the claimed adverse impact on those participants from poor rural backgrounds, see Colorado Seminary (Univ. of Denver) v. NCAA, 417 F. Supp. 885, 897-898 (D. Colo. 1976), aff'd, 570 F.2d 320, 321 (10th Cir. 1978).