U.S. Supreme Court Swann v. Charlotte-Mecklenburg Bd. of
Educ., 402 U.S. 1 (1971) Swann v. Charlotte-Mecklenburg Board
of Education No. 281 Argued October 12,
1970 Decided April 20, 1971 402 U.S.
1 ast|>* 402 U.S.
1 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH
CIRCUIT Syllabus The Charlotte-Mecklenburg school system, which includes the city
of Charlotte, North Carolina, had more than 84,000 students in 107
schools in the 1968-1969 school year. Approximately 29% (24,000) of
the pupils were Negro, about 14,000 of whom attended 21 schools
that were at least 99% Negro. This resulted from a desegregation
plan approved by the District Court in 1965, at the commencement of
this litigation. In 1968, petitioner Swann moved for further relief
based on Green v. County School Board, 391 U.
S. 430 , which required school boards to

															"come forward with a plan that promises realistically to work .
. . now . . . until it is clear that state-imposed segregation has
been completely removed."

															The District Court ordered the school board in April 1969 to
provide a plan for faculty and student desegregation. Finding the
board's submission unsatisfactory, the District Court appointed an
expert to submit a desegregation plan. In February 1970, the expert
and the board presented plans, and the court adopted the board's
plan, as modified, for the junior and senior high schools, and the
expert's proposed plan for the elementary schools. The Court of
Appeals affirmed the District Court's order as to faculty
desegregation and the secondary school plans, Page 402 U. S. 2 but vacated the order respecting elementary schools, fearing
that the provisions for pairing and grouping of elementary schools
would unreasonably burden the pupils and the board. The case was
remanded to the District Court for reconsideration and submission
of further plans. This Court granted certiorari and directed
reinstatement of the District Court's order pending further
proceedings in that court. On remand the District Court received
two new plans, and ordered the board to adopt a plan, or the
expert's plan would remain in effect. After the board "acquiesced"
in the expert's plan, the District Court directed that it remain in
effect. Held: 1. Today's objective is to eliminate from the public schools all
vestiges of state-imposed segregation that was held violative of
equal protection guarantees by Brown v. Board of
Education, 347 U. S. 483 , in
1954. P. 402 U. S. 15 .

															2. In default by the school authorities of their affirmative
obligation to proffer acceptable remedies, the district courts have
broad power to fashion remedies that will assure unitary school
systems. P. 402 U. S. 16 .

															3. Title IV of the Civil Rights Act of 1964 does not restrict or
withdraw from the federal courts their historic equitable remedial
powers. The proviso in 42 U.S.C. § 2000c-6 was designed simply to
foreclose any interpretation of the Act as expanding the existing
powers of the federal courts to enforce the Equal Protection
Clause. Pp. 402 U. S.
16 -18.

															4. Policy and practice with regard to faculty, staff,
transportation, extracurricular activities, and facilities are
among the most important indicia of a segregated system, and the
first remedial responsibility of school authorities is to eliminate
invidious racial distinctions in those respects. Normal
administrative practice should then produce schools of like
quality, facilities, and staffs. Pp. 402 U. S.
18 -19.

															5. The Constitution does not prohibit district courts from using
their equity power to order assignment of teachers to achieve a
particular degree of faculty desegregation. United States v.
Montgomery County Board of Education, 395 U.
S. 225 , was properly followed by the lower courts in
this case. Pp. 402 U. S.
19 -20.

															6. In devising remedies to eliminate legally imposed
segregation, local authorities and district courts must see to it
that future school construction and abandonment are not used and do
not serve to perpetuate or reestablish a dual system. Pp. 402 U. S.
20 -21. Page 402 U. S. 3 7. Four problem areas exist on the issue of student
assignment:

															(1) Racial quotas. The constitutional command to
desegregate schools does not mean that every school in the
community must always reflect the racial composition of the system
as a whole; here the District Court's very limited use of the
racial ratio -- not as an inflexible requirement, but as a starting
point in shaping a remedy -- was within its equitable discretion.
Pp. 402 U. S.
22 -25.

															(2) One-race schools. While the existence of a small
number of one-race, or virtually one-race, schools does not, in
itself, denote a system that still practices segregation by law,
the court should scrutinize such schools and require the school
authorities to satisfy the court that the racial composition does
not result from present or past discriminatory action on their
part. Pp. 402 U. S.
25 -26.

															An optional majority-to-minority transfer provision has long
been recognized as a useful part of a desegregation plan, and to be
effective such arrangement must provide the transferring student
free transportation and available space in the school to which he
desires to move. Pp. 402 U. S.
26 -27.

															(3) Attendance zones. The remedial altering of
attendance zones is not, as an interim corrective measure, beyond
the remedial powers of a district court. A student assignment plan
is not acceptable merely because it appears to be neutral, for such
a plan may fail to counteract the continuing effects of past school
segregation. The pairing and grouping of noncontiguous zones is a
permissible tool; judicial steps going beyond contiguous zones
should be examined in light of the objectives to be sought. No
rigid rules can be laid down to govern conditions in different
localities. Pp. 402 U. S.
27 -29.

															(4) Transportation. The District Court's conclusion
that assignment of children to the school nearest their home
serving their grade would not effectively dismantle the dual school
system is supported by the record, and the remedial technique of
requiring bus transportation as a tool of school desegregation was
within that court's power to provide equitable relief. An objection
to transportation of students may have validity when the time or
distance of travel is so great as to risk either the health of the
children or significantly impinge on the educational process;
limits on travel time will vary with many factors, but probably
with none more than the age of the students. Pp. 402 U. S.
29 -31. Page 402 U. S. 4 8. Neither school authorities nor district courts are
constitutionally required to make year-by-year adjustments of the
racial composition of student bodies once a unitary system has been
achieved. Pp. 402 U. S.
31 -32.

															431 F.2d 138, affirmed as to those parts in which it affirmed
the District Court's judgment. The District Court's order of August
7, 1970, is also affirmed.

															BURGER, C.J., delivered the opinion for a unanimous Court. Page 402 U. S. 5 MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

															We granted certiorari in this case to review important issues as
to the duties of school authorities and the scope of powers of
federal courts under this Court's mandates to eliminate racially
separate public schools established and maintained by state action. Brown v. Board of Education, 347 U.
S. 483 (1954) ( Brown I ).

															This case and those argued with it [ Footnote 1 ] arose in States having a long history of
maintaining two sets of schools in a Page 402 U. S. 6 single school system deliberately operated to carry out a
governmental policy to separate pupils in schools solely on the
basis of race. That was what Brown v. Board of Education was all about. These cases present us with the problem of defining
in more precise terms than heretofore the scope of the duty of
school authorities and district courts in implementing Brown
I and the mandate to eliminate dual systems and establish
unitary systems at once. Meanwhile, district courts and courts of
appeals have struggled in hundreds of cases with a multitude and
variety of problems under this Court's general directive.
Understandably, in an area of evolving remedies, those courts had
to improvise and experiment without detailed or specific
guidelines. This Court, in Brown I, appropriately dealt
with the large constitutional principles; other federal courts had
to grapple with the flinty, intractable realities of day-to-day
implementation of those constitutional commands. Their efforts, of
necessity, embraced a process of "trial and error," and our effort
to formulate guidelines must take into account their
experience. I The Charlotte-Mecklenburg school system, the 43d largest in the
Nation, encompasses the city of Charlotte and surrounding
Mecklenburg County, North Carolina. The area is large -- 550 square
miles --spanning roughly 22 miles east-west and 36 miles
north-south. During the 1968-1969 school year, the system served
more than 84,000 pupils in 107 schools. Approximately 71% of the
pupils were found to be white, and 29% Negro. As of Page 402 U. S. 7 June, 1969, there were approximately 24,000 Negro students in
the system, of whom 21,000 attended schools within the city of
Charlotte. Two-thirds of those 21,000 -- approximately 14,000 Negro
students -- attended 21 schools which were either totally Negro or
more than 99% Negro.

															This situation came about under a desegregation plan approved by
the District Court at the commencement of the present litigation in
1965, 243 F.
Supp. 667 (WDNC), aff'd, 369 F.2d 29 (CA4 1966), based
upon geographic zoning with a free transfer provision. The present
proceedings were initiated in September, 1968, by petitioner
Swann's motion for further relief based on Green v. County
School Board, 391 U. S. 430 (1968), and its companion cases. [ Footnote 2 ] All parties now agree that in 1969 the system
fell short of achieving the unitary school system that those cases
require.

															The District Court held numerous hearings and received
voluminous evidence. In addition to finding certain actions of the
school board to be discriminatory, the court also found that
residential patterns in the city and county resulted in part from
federal, state, and local government action other than school board
decisions. School board action based on these patterns, for
example, by locating schools in Negro residential areas and fixing
the size of the schools to accommodate the needs of immediate
neighborhoods, resulted in segregated education. These findings
were subsequently accepted by the Court of Appeals.

															In April, 1969, the District Court ordered the school board to
come forward with a plan for both faculty and student
desegregation. Proposed plans were accepted by the court in June
and August, 1969, on an interim basis Page 402 U. S. 8 only, and the board was ordered to file a third plan by
November, 1969. In November, the board moved for an extension of
time until February, 1970, but when that was denied the board
submitted a partially completed plan. In December, 1969, the
District Court held that the board's submission was unacceptable
and appointed an expert in education administration, Dr. John
Finger, to prepare a desegregation plan. Thereafter in February,
1970, the District Court was presented with two alternative pupil
assignment plan the finalized "board plan" and the "Finger
plan." The Board Plan. As finally submitted, the school board
plan closed seven schools and reassigned their pupils. It
restructured school attendance zones to achieve greater racial
balance but maintained existing grade structures and rejected
techniques such as pairing and clustering as part of a
desegregation effort. The plan created a single athletic league,
eliminated the previously racial basis of the school bus system,
provided racially mixed faculties and administrative staffs, and
modified its free-transfer plan into an optional
majority-to-minority transfer system.

															The board plan proposed substantial assignment of Negroes to
nine of the system's 10 high schools, producing 17% to 36% Negro
population in each. The projected Negro attendance at the 10th
school, Independence, was 2%. The proposed attendance zones for the
high schools were typically shaped like wedges of a pie, extending
outward from the center of the city to the suburban and rural areas
of the county in order to afford residents of the center city area
access to outlying schools.

															As for junior high schools, the board plan rezoned the 21 school
areas so that, in 20, the Negro attendance would range from 0% to
38%. The other school, located in the heart of the Negro
residential area, was left with an enrollment of 90% Negro. Page 402 U. S. 9 The board plan with respect to elementary schools relied
entirely upon gerrymandering of geographic zones. More than half of
the Negro elementary pupils were left in nine schools that were 86%
to 100% Negro; approximately half of the white elementary pupils
were assigned to schools 86% to 100% white. The Finger Plan. The plan submitted by the
court-appointed expert, Dr. Finger, adopted the school board zoning
plan for senior high schools with one modification: it required
that an additional 300 Negro students be transported from the Negro
residential area of the city to the nearly all-white Independence
High School.

															The Finger plan for the junior high schools employed much of the
rezoning plan of the board, combined with the creation of nine
"satellite" zones. [ Footnote 3 ]
Under the satellite plan, inner-city Negro students were assigned
by attendance zones to nine outlying predominately white junior
high schools, thereby substantially desegregating every junior high
school in the system.

															The Finger plan departed from the board plan chiefly in its
handling of the system's 76 elementary schools. Rather than relying
solely upon geographic zoning, Dr. Finger proposed use of zoning,
pairing, and grouping techniques, with the result that student
bodies throughout the system would range from 9% to 38% Negro.
[ Footnote 4 ]

															The District Court described the plan thus:

															"Like the board plan, the Finger plan does as much by rezoning
school attendance lines as can reasonably Page 402 U. S. 10 be accomplished. However, unlike the board plan, it does not
stop there. It goes further and desegregates all the rest of the
elementary schools by the technique of grouping two or three
outlying schools with one black inner city school; by transporting
black students from grades one through four to the outlying white
schools; and by transporting white students from the fifth and
sixth grades from the outlying white schools to the inner city
black school."

															Under the Finger plan, nine inner-city Negro schools were
grouped in this manner with 24 suburban white schools.

															On February 5, 1970, the District Court adopted the board plan,
as modified by Dr. Finger, for the junior and senior high schools.
The court rejected the board elementary school plan and adopted the
Finger plan as presented. Implementation was partially stayed by
the Court of Appeals for the Fourth Circuit on March 5, and this
Court declined to disturb the Fourth Circuit's order, 397 U.S. 978
(1970).

															On appeal, the Court of Appeals affirmed the District Court's
order as to faculty desegregation and the secondary school plans,
but vacated the order respecting elementary schools. While agreeing
that the District Court properly disapproved the board plan
concerning these schools, the Court of Appeals feared that the
pairing and grouping of elementary schools would place an
unreasonable burden on the board and the system's pupils. The case
was remanded to the District Court for reconsideration and
submission of further plans. 431 F.2d Page 402 U. S. 11 138. This Court granted certiorari, 399 U.S. 926, and directed
reinstatement of the District Court's order pending further
proceedings in that court.

															On remand, the District Court received two new plans for the
elementary schools: a plan prepared by the United States Department
of Health, Education, and Welfare (the HEW plan) based on
contiguous grouping and zoning of schools, and a plan prepared by
four members of the nine-member school board (the minority plan)
achieving substantially the same results as the Finger plan but
apparently with slightly less transportation. A majority of the
school board declined to amend its proposal. After a lengthy
evidentiary hearing, the District Court concluded that its own plan
(the Finger plan), the minority plan, and an earlier draft of the
Finger plan were all reasonable and acceptable. It directed the
board to adopt one of the three or, in the alternative, to come
forward with a new, equally effective plan of its own; the court
ordered that the Finger plan would remain in effect in the event
the school board declined to adopt a new plan. On August 7, the
board indicated it would "acquiesce" in the Finger plan,
reiterating its view that the plan was unreasonable. The District
Court, by order dated August 7, 1970, directed that the Finger plan
remain in effect. II Nearly 17 years ago, this Court held, in explicit terms, that
state-imposed segregation by race in public schools denies equal
protection of the laws. At no time has the Court deviated in the
slightest degree from that holding or its constitutional
underpinnings. None of the parties before us challenges the Court's
decision of May 17, 1954, that,

															"in the field of public education, the doctrine of 'separate but
equal' has no place. Separate educational facilities are inherently
unequal. Therefore, Page 402 U. S. 12 we hold that the plaintiffs and others similarly situated . . .
are, by reason of the segregation complained of, deprived of the
equal protection of the laws guaranteed by the Fourteenth
Amendment. . . ."

															"Because these are class actions, because of the wide
applicability of this decision, and because of the great variety of
local conditions, the formulation of decrees in these cases
presents problems of considerable complexity." Brown v. Board of Education, supra, at 347 U. S.
495 .

															None of the parties before us questions the Court's 1955 holding
in Brown II, that

															"School authorities have the primary responsibility for
elucidating, assessing, and solving these problems; courts will
have to consider whether the action of school authorities
constitutes good faith implementation of the governing
constitutional principles. Because of their proximity to local
conditions and the possible need for further hearings, the courts
which originally heard these cases can best perform this judicial
appraisal. Accordingly, we believe it appropriate to remand the
cases to those courts."

															"In fashioning and effectuating the decrees, the courts will be
guided by equitable principles. Traditionally, equity has been
characterized by a practical flexibility in shaping its remedies
and by a facility for adjusting and reconciling public and private
needs. These cases call for the exercise of these traditional
attributes of equity power. At stake is the personal interest of
the plaintiffs in admission to public schools as soon as
practicable on a nondiscriminatory basis. To effectuate this
interest may call for elimination of a variety of obstacles in
making the transition to school systems operated in accordance with
the constitutional principles set forth in our May 17, 1954,
decision. Courts of Page 402 U. S. 13 equity may properly take into account the public interest in the
elimination of such obstacles in a systematic and effective manner.
But it should go without saying that the vitality of these
constitutional principles cannot be allowed to yield simply because
of disagreement with them." Brown v. Board of Education, 349 U.
S. 294 , 349 U. S.
299 -300 (1955).

															Over the 16 years since Brown II, many difficulties
were encountered in implementation of the basic constitutional
requirement that the State not discriminate between public school
children on the basis of their race. Nothing in our national
experience prior to 1955 prepared anyone for dealing with changes
and adjustments of the magnitude and complexity encountered since
then. Deliberate resistance of some to the Court's mandates has
impeded the good faith efforts of others to bring school systems
into compliance. The detail and nature of these dilatory tactics
have been noted frequently by this Court and other courts.

															By the time the Court considered Green v. County School
Board, 391 U. S. 430 , in
1968, very little progress had been made in many areas where dual
school systems had historically been maintained by operation of
state laws. In Green, the Court was confronted with a
record of a freedom of choice program that the District Court had
found to operate, in fact, to preserve a dual system more than a
decade after Brown II. While acknowledging that a freedom
of choice concept could be a valid remedial measure in some
circumstances, its failure to be effective in Green required that:

															"The burden on a school board today is to come forward with a
plan that promises realistically to work . . . now . . .
until it is clear that state-imposed segregation has been
completely removed." Green, supra, at 391 U. S.
439 . Page 402 U. S. 14 This was plain language, yet the 1969 Term of Court brought
fresh evidence of the dilatory tactics of many school authorities. Alexander v. Holmes County Board of Education, 396 U. S. 19 ,
restated the basic obligation asserted in Griffin v. School
Board, 377 U. S. 218 , 377 U. S. 234 (1964), and Green, supra, that the remedy must be
implemented forthwith.

															The problems encountered by the district courts and courts of
appeals make plain that we should now try to amplify guidelines,
however incomplete and imperfect, for the assistance of school
authorities and courts. [ Footnote
5 ] The failure of local authorities to meet their
constitutional obligations aggravated the massive problem of
converting from the state-enforced discrimination of racially
separate school systems. This process has been rendered more
difficult by changes since 1954 in the structure and patterns of
communities, the growth of student population, [ Footnote 6 ] movement of families, and other
changes, some of which had marked impact on school planning,
sometimes neutralizing or negating remedial action before it was
fully implemented. Rural areas accustomed for half a century to the
consolidated school systems implemented by bus transportation could
make adjustments more readily than metropolitan areas with dense
and shifting population, numerous schools, congested and complex
traffic patterns. Page 402 U. S. 15 III The objective today remains to eliminate from the public schools
all vestiges of state-imposed segregation. Segregation was the evil
struck down by Brown I as contrary to the equal protection
guarantees of the Constitution. That was the violation sought to be
corrected by the remedial measures of Brown II. That was
the basis for the holding in Green that school authorities
are

															"clearly charged with the affirmative duty to take whatever
steps might be necessary to convert to a unitary system in which
racial discrimination would be eliminated root and branch."

															391 U.S. at 391 U. S.
437 -438.

															If school authorities fail in their affirmative obligations
under these holdings, judicial authority may be invoked. Once a
right and a violation have been shown, the scope of a district
court's equitable powers to remedy past wrongs is broad, for
breadth and flexibility are inherent in equitable remedies.

															"The essence of equity jurisdiction has been the power of the
Chancellor to do equity and to mould each decree to the necessities
of the particular case. Flexibility, rather than rigidity, has
distinguished it. The qualities of mercy and practicality have made
equity the instrument for nice adjustment and reconciliation
between the public interest and private needs as well as between
competing private claims." Hecht Co. v. Bowles, 321 U. S. 321 , 321 U. S.
329 -330 (1944), cited in Brown II, supra, at 347 U. S.
300 .

															This allocation of responsibility once made, the Court attempted
from time to time to provide some guidelines for the exercise of
the district judge's discretion and for the reviewing function of
the courts of appeals. However, a school desegregation case does
not differ fundamentally from other cases involving the framing
of Page 402 U. S. 16 equitable remedies to repair the denial of a constitutional
right. The task is to correct, by a balancing of the individual and
collective interests, the condition that offends the
Constitution.

															In seeking to define even in broad and general terms how far
this remedial power extends, it is important to remember that
judicial powers may be exercised only on the basis of a
constitutional violation. Remedial judicial authority does not put
judges automatically in the shoes of school authorities whose
powers are plenary. Judicial authority enters only when local
authority defaults.

															School authorities are traditionally charged with broad power to
formulate and implement educational policy, and might well
conclude, for example, that, in order to prepare students to live
in a pluralistic society, each school should have a prescribed
ratio of Negro to white students reflecting the proportion for the
district as a whole. To do this as an educational policy is within
the broad discretionary powers of school authorities; absent a
finding of a constitutional violation, however, that would not be
within the authority of a federal court. As with any equity case,
the nature of the violation determines the scope of the remedy. In
default by the school authorities of their obligation to proffer
acceptable remedies, a district court has broad power to fashion a
remedy that will assure a unitary school system.

															The school authorities argue that the equity powers of federal
district courts have been limited by Title IV of the Civil Rights
Act of 1964, 42 U.S.C. § 2000c. The language and the history of
Title IV show that it was enacted not to limit, but to define, the
role of the Federal Government in the implementation of the Brown I decision. It authorizes the Commissioner of
Education to provide technical assistance to local boards in the
preparation of desegregation plans, to arrange "training
institutes" Page 402 U. S. 17 for school personnel involved in desegregation efforts, and to
make grants directly to schools to ease the transition to unitary
systems. It also authorizes the Attorney General, in specified
circumstances, to initiate federal desegregation suits. Section
2000c(b) defines "desegregation" as it is used in Title IV:

															"'Desegregation' means the assignment of students to public
schools and within such schools without regard to their race,
color, religion, or national origin, but 'desegregation' shall not
mean the assignment of students to public schools in order to
overcome racial imbalance."

															Section 2000c-6, authorizing the Attorney General to institute
federal suits, contains the following proviso:

															"nothing herein shall empower any official or court of the
United States to issue any order seeking to achieve a racial
balance in any school by requiring the transportation of pupils or
students from one school to another or one school district to
another in order to achieve such racial balance, or otherwise
enlarge the existing power of the court to insure compliance with
constitutional standard."

															On their face, the sections quoted purport only to insure that
the provisions of Title IV of the Civil Rights Act of 1964 will not
be read as granting new powers. The proviso in § 2000c-6 is, in
terms, designed to foreclose any interpretation of the Act as
expanding the existing powers of federal courts to enforce the
Equal Protection Clause. There is no suggestion of an intention to
restrict those powers or withdraw from courts their historic
equitable remedial powers. The legislative history of Title IV
indicates that Congress was concerned that the Act might be read as
creating a right of action under the Fourteenth Amendment in the
situation of so-called " de facto segregation," where
racial imbalance exists in the Page 402 U. S. 18 schools but with no showing that this was brought about by
discriminatory action of state authorities. In short, there is
nothing in the Act that provides us material assistance in
answering the question of remedy for state-imposed segregation in
violation of Brown I. The basis of our decision must be
the prohibition of the Fourteenth Amendment that no State shall
"deny to any person within its jurisdiction the equal protection of
the laws." IV We turn now to the problem of defining with more particularity
the responsibilities of school authorities in desegregating a
state-enforced dual school system in light of the Equal Protection
Clause. Although the several related cases before us are primarily
concerned with problems of student assignment, it may be helpful to
begin with a brief discussion of other aspects of the process.

															In Green, we pointed out that existing policy and
practice with regard to faculty, staff, transportation,
extracurricular activities, and facilities were among the most
important indicia of a segregated system. 391 U.S. at 391 U. S. 435 .
Independent of student assignment, where it is possible to identify
a "white school" or a "Negro school" simply by reference to the
racial composition of teachers and staff, the quality of school
buildings and equipment, or the organization of sports activities,
a prima facie case of violation of substantive
constitutional rights under the Equal Protection Clause is
shown.

															When a system has been dual in these respects, the first
remedial responsibility of school authorities is to eliminate
invidious racial distinctions. With respect to such matters as
transportation, supporting personnel, and extracurricular
activities, no more than this may be necessary. Similar corrective
action must be taken with regard to the maintenance of buildings
and the distribution of equipment. In these areas, normal
administrative Page 402 U. S. 19 practice should produce schools of like quality, facilities, and
staffs. Something more must be said, however, as to faculty
assignment and new school construction.

															In the companion Davis case, post, p. 402 U. S. 33 , the
Mobile school board has argued that the Constitution requires that
teachers be assigned on a "color blind" basis. It also argues that
the Constitution prohibits district courts from using their equity
power to order assignment of teachers to achieve a particular
degree of faculty desegregation. We reject that contention.

															In United States v. Montgomery County Board of
Education, 395 U. S. 225 (1969), the District Court set as a goal a plan of faculty
assignment in each school with a ratio of white to Negro faculty
members substantially the same throughout the system. This order
was predicated on the District Court finding that:

															"The evidence does not reflect any real administrative problems
involved in immediately desegregating the substitute teachers, the
student teachers, the night school faculties, and in the evolvement
of a really legally adequate program for the substantial
desegregation of the faculties of all schools in the system
commencing with the school year 1968-69."

															Quoted at 395 U.S. at 395 U. S.
232 .

															The District Court, in Montgomery, then proceeded to
set an initial ratio for the whole system of at least two Negro
teachers out of each 12 in any given school. The Court of Appeals
modified the order by eliminating what it regarded as "fixed
mathematical" ratios of faculty and substituted an initial
requirement of "substantially or approximately" a five-to-one
ratio. With respect to the future, the Court of Appeals held that
the numerical ratio should be eliminated and that compliance should
not be tested solely by the achievement of specified proportions. Id. at 234. Page 402 U. S. 20 We reversed the Court of Appeals and restored the District
Court's order in its entirety, holding that the order of the
District Judge

															"was adopted in the spirit of this Court's opinion in Green . . . in that his plan 'promises realistically to
work, and promises realistically to work now. ' The
modifications ordered by the panel of the Court of Appeals, while
of course not intended to do so, would, we think, take from the
order some of its capacity to expedite, by means of specific
commands, the day when a completely unified, unitary,
nondiscriminatory school system becomes a reality instead of a
hope. . . . We also believe that, under all the circumstances of
this case, we follow the original plan outlined in Brown
II . . . by accepting the more specific and expeditious order
of [District] Judge Johnson. . . ."

															395 U.S. at 395 U. S.
235 -236 (emphasis in original). The principles of Montgomery have been properly followed by the District
Court and the Court of Appeals in this case.

															The construction of new schools and the closing of old ones are
two of the most important functions of local school authorities and
also two of the most complex. They must decide questions of
location and capacity in light of population growth, finances, land
values, site availability, through an almost endless list of
factors to be considered. The result of this will be a decision
which, when combined with one technique or another of student
assignment, will determine the racial composition of the student
body in each school in the system. Over the long run, the
consequences of the choices will be far-reaching. People gravitate
toward school facilities, just as schools are located in response
to the needs of people. The location of schools may thus
influence Page 402 U. S. 21 the patterns of residential development of a metropolitan area
and have important impact on composition of inner-city
neighborhoods.

															In the past, choices in this respect have been used as a potent
weapon for creating or maintaining a state-segregated school
system. In addition to the classic pattern of building schools
specifically intended for Negro or white students, school
authorities have sometimes, since Brown, closed schools
which appeared likely to become racially mixed through changes in
neighborhood residential patterns. This was sometimes accompanied
by building new schools in the areas of white suburban expansion
farthest from Negro population centers in order to maintain the
separation of the races with a minimum departure from the formal
principles of "neighborhood zoning." Such a policy does more than
simply influence the short-run composition of the student body of a
new school. It may well promote segregated residential patterns
which, when combined with "neighborhood zoning," further lock the
school system into the mold of separation of the races. Upon a
proper showing, a district court may consider this in fashioning a
remedy.

															In ascertaining the existence of legally imposed school
segregation, the existence of a pattern of school construction and
abandonment is thus a factor of great weight. In devising remedies
where legally imposed segregation has been established, it is the
responsibility of local authorities and district courts to see to
it that future school construction and abandonment are not used and
do not serve to perpetuate or reestablish the dual system. When
necessary, district courts should retain jurisdiction to assure
that these responsibilities are carried out. Cf. United States
v. Board of Public Instruction, 395 F.2d 66 (CA5 1968); Brewer v. School Board, 397 F.2d 37 (CA4 1968). Page 402 U. S. 22 V The central issue in this case is that of student assignment,
and there are essentially four problem areas:

															(1) to what extent racial balance or racial quotas may be used
as an implement in a remedial order to correct a previously
segregated system;

															(2) whether every all-Negro and all-white school must be
eliminated as an indispensable part of a remedial process of
desegregation;

															(3) what the limits are, if any, on the rearrangement of school
districts and attendance zones, as a remedial measure; and

															(4) what the limits are, if any, on the use of transportation
facilities to correct state-enforced racial school segregation.

															(1) Racial Balances or Racial Quotas. The constant theme and thrust of every holding from Brown
I to date is that state-enforced separation of races in public
schools is discrimination that violates the Equal Protection
Clause. The remedy commanded was to dismantle dual school
systems.

															We are concerned in these cases with the elimination of the
discrimination inherent in the dual school systems, not with myriad
factors of human existence which can cause discrimination in a
multitude of ways on racial, religious, or ethnic grounds. The
target of the cases from Brown I to the present was the
dual school system. The elimination of racial discrimination in
public schools is a large task, and one that should not be retarded
by efforts to achieve broader purposes lying beyond the
jurisdiction of school authorities. One vehicle can carry only a
limited amount of baggage. It would not serve the important
objective of Brown I to seek to use school desegregation
cases for purposes beyond their scope, although desegregation of
schools ultimately will have Page 402 U. S. 23 impact on other forms of discrimination. We do not reach in this
case the question whether a showing that school segregation is a
consequence of other types of state action, without any
discriminatory action by the school authorities, is a
constitutional violation requiring remedial action by a school
desegregation decree. This case does not present that question and
we therefore do not decide it.

															Our objective in dealing with the issues presented by these
cases is to see that school authorities exclude no pupil of a
racial minority from any school, directly or indirectly, on account
of race; it does not and cannot embrace all the problems of racial
prejudice, even when those problems contribute to disproportionate
racial concentrations in some schools.

															In this case, it is urged that the District Court has imposed a
racial balance requirement of 71%-29% on individual schools. The
fact that no such objective was actually achieved -- and would
appear to be impossible -- tends to blunt that claim, yet in the
opinion and order of the District Court of December 1, 1969, we
find that court directing

															"that efforts should be made to reach a 71-29 ratio in the
various schools so that there will be no basis for contending that
one school is racially different from the others . . . , [t]hat no
school [should] be operated with an all-black or predominantly
black student body, [and] [t]hat pupils of all grades [should] be
assigned in such a way that as nearly as practicable the various
schools at various grade levels have about the same proportion of
black and white students."

															The District Judge went on to acknowledge that variation "from
that norm may be unavoidable." This contains intimations that the
"norm" is a fixed mathematical Page 402 U. S. 24 racial balance reflecting the pupil constituency of the system.
If we were to read the holding of the District Court to require, as
a matter of substantive constitutional right, any particular degree
of racial balance or mixing, that approach would be disapproved and
we would be obliged to reverse. The constitutional command to
desegregate schools does not mean that every school in every
community must always reflect the racial composition of the school
system as a whole.

															As the voluminous record in this case shows, [ Footnote 7 ] the predicate for the District
Court's use of the 71%-29% ratio was twofold: first, its express
finding, approved by the Court of Appeals and not challenged here,
that a dual school system had been maintained by the school
authorities at least until 1969; second, its finding, also approved
by the Court of Appeals, that the school board had totally
defaulted in its acknowledged duty to come forward with an
acceptable plan of its own, notwithstanding the patient efforts of
the District Judge who, on at least three occasions, urged the
board to submit plans. [ Footnote
8 ] As the statement of facts shows, these findings are
abundantly Page 402 U. S. 25 supported by the record. It was because of this total failure of
the school board that the District Court was obliged to turn to
other qualified sources, and Dr. Finger was designated to assist
the District Court to do what the board should have done.

															We see therefore that the use made of mathematical ratios was no
more than a starting point in the process of shaping a remedy,
rather than an inflexible requirement. From that starting point,
the District Court proceeded to frame a decree that was within its
discretionary powers, as an equitable remedy for the particular
circumstances. [ Footnote 9 ] As
we said in Green, a school authority's remedial plan or a
district court's remedial decree is to be judged by its
effectiveness. Awareness of the racial composition of the whole
school system is likely to be a useful starting point in shaping a
remedy to correct past constitutional violations. In sum, the very
limited use made of mathematical ratios was within the equitable
remedial discretion of the District Court.

															(2) One-race Schools. The record in this case reveals the familiar phenomenon that, in
metropolitan areas, minority groups are often found concentrated in
one part of the city. In some circumstances, certain schools may
remain all or largely of one race until new schools can be provided
or neighborhood patterns change. Schools all or predominately Page 402 U. S. 26 of one race in a district of mixed population will require close
scrutiny to determine that school assignments are not part of
state-enforced segregation.

															In light of the above, it should be clear that the existence of
some small number of one-race, or virtually one-race, schools
within a district is not, in and of itself, the mark of a system
that still practices segregation by law. The district judge or
school authorities should make every effort to achieve the greatest
possible degree of actual desegregation, and will thus necessarily
be concerned with the elimination of one-race schools. No per
se rule can adequately embrace all the difficulties of
reconciling the competing interests involved; but, in a system with
a history of segregation, the need for remedial criteria of
sufficient specificity to assure a school authority's compliance
with its constitutional duty warrants a presumption against schools
that are substantially disproportionate in their racial
composition. Where the school authority's proposed plan for
conversion from a dual to a unitary system contemplates the
continued existence of some schools that are all or predominately
of one race, they have the burden of showing that such school
assignments are genuinely nondiscriminatory. The court should
scrutinize such schools, and the burden upon the school authorities
will be to satisfy the court that their racial composition is not
the result of present or past discriminatory action on their
part.

															An optional majority-to-minority transfer provision has long
been recognized as a useful part of every desegregation plan.
Provision for optional transfer of those in the majority racial
group of a particular school to other schools where they will be in
the minority is an indispensable remedy for those students willing
to transfer to other schools in order to lessen the impact on them
of the state-imposed stigma of segregation. In order to be
effective, such a transfer arrangement must grant Page 402 U. S. 27 the transferring student free transportation and space must be
made available in the school to which he desires to move. Cf.
Ellis v. Board of Public Instruction, 423 F.2d 203, 206 (CA5
1970). The court orders in this and the companion Davis case now provide such an option.

															(3) Remedial Altering of Attendance Zones. The maps submitted in these cases graphically demonstrate that
one of the principal tools employed by school planners and by
courts to break up the dual school system has been a frank -- and
sometimes drastic -- gerrymandering of school districts and
attendance zones. An additional step was pairing, "clustering," or
"grouping" of schools with attendance assignments made deliberately
to accomplish the transfer of Negro students out of formerly
segregated Negro schools and transfer of white students to formerly
all-Negro schools. More often than not, these zones are neither
compact [ Footnote 10 ] nor
contiguous; indeed they may be on opposite ends of the city. As an
interim corrective measure, this cannot be said to be beyond the
broad remedial powers of a court. Page 402 U. S. 28 Absent a constitutional violation, there would be no basis for
judicially ordering assignment of students on a racial basis. All
things being equal, with no history of discrimination, it might
well be desirable to assign pupils to schools nearest their homes.
But all things are not equal in a system that has been deliberately
constructed and maintained to enforce racial segregation. The
remedy for such segregation may be administratively awkward,
inconvenient, and even bizarre in some situations, and may impose
burdens on some; but all awkwardness and inconvenience cannot be
avoided in the interim period when remedial adjustments are being
made to eliminate the dual school systems.

															No fixed or even substantially fixed guidelines can be
established as to how far a court can go, but it must be recognized
that there are limits. The objective is to dismantle the dual
school system. "Racially neutral" assignment plans proposed by
school authorities to a district court may be inadequate; such
plans may fail to counteract the continuing effects of past school
segregation resulting from discriminatory location of school sites
or distortion of school size in order to achieve or maintain an
artificial racial separation. When school authorities present a
district court with a "loaded game board," affirmative action in
the form of remedial altering of attendance zones is proper to
achieve truly nondiscriminatory assignments. In short, an
assignment plan is not acceptable simply because it appears to be
neutral.

															In this area, we must of necessity rely to a large extent, as
this Court has for more than 16 years, on the informed judgment of
the district courts in the first instance and on courts of
appeals.

															We hold that the pairing and grouping of noncontiguous school
zones is a permissible tool, and such action is to be considered in
light of the objectives sought. Judicial Page 402 U. S. 29 steps in shaping such zones going beyond combinations of
contiguous areas should be examined in light of what is said in
subdivisions (1), (2), and (3) of this opinion concerning the
objectives to be sought. Maps do not tell the whole story, since
noncontiguous school zones may be more accessible to each other in
terms of the critical travel time, because of traffic patterns and
good highways, than schools geographically closer together.
Conditions in different localities will vary so widely that no
rigid rules can be laid down to govern all situations.

															(4) Transportation of Students. The scope of permissible transportation of students as an
implement of a remedial decree has never been defined by this
Court, and, by the very nature of the problem, it cannot be defined
with precision. No rigid guidelines as to student transportation
can be given for application to the infinite variety of problems
presented in thousands of situations. Bus transportation has been
an integral part of the public education system for years, and was
perhaps the single most important factor in the transition from the
one-room schoolhouse to the consolidated school. Eighteen million
of the Nation's public school children, approximately 39%, were
transported to their schools by bus in 1969-1970 in all parts of
the country.

															The importance of bus transportation as a normal and accepted
tool of educational policy is readily discernible in this and the
companion case, Davis, supra. [ Footnote 11 ] The Page 402 U. S. 30 Charlotte school authorities did not purport to assign students
on the basis of geographically drawn zones until 1965, and then
they allowed almost unlimited transfer privileges. The District
Court's conclusion that assignment of children to the school
nearest their home serving their grade would not produce an
effective dismantling of the dual system is supported by the
record.

															Thus, the remedial techniques used in the District Court's order
were within that court's power to provide equitable relief;
implementation of the decree is well within the capacity of the
school authority.

															The decree provided that the buses used to implement the plan
would operate on direct routes. Students would be picked up at
schools near their homes and transported to the schools they were
to attend. The trips for elementary school pupils average about
seven miles, and the District Court found that they would take "not
over 35 minutes, at the most." [ Footnote 12 ] This system compares favorably with the
transportation plan previously operated in Charlotte, under which,
each day, 23,600 students on all grade levels were transported an
average of 15 miles one way for an average trip requiring over an
hour. In these circumstances, we find no basis for holding that the
local school authorities may not be required to employ bus
transportation as one tool of school desegregation. Desegregation
plans cannot be limited to the walk-in school.

															An objection to transportation of students may have validity
when the time or distance of travel is so great as to either risk
the health of the children or significantly Page 402 U. S. 31 impinge on the educational process. District courts must weigh
the soundness of any transportation plan in light of what is said
in subdivisions (1), (2), and (3) above. It hardly needs stating
that the limits on time of travel will vary with many factors, but
probably with none more than the age of the students. The
reconciliation of competing values in a desegregation case is, of
course, a difficult task with many sensitive facets, but
fundamentally no more so than remedial measures courts of equity
have traditionally employed. VI The Court of Appeals, searching for a term to define the
equitable remedial power of the district courts, used the term
"reasonableness." In Green, supra, this Court used the
term "feasible," and, by implication, "workable," "effective," and
"realistic" in the mandate to develop "a plan that promises
realistically to work, and . . . to work now. " On the
facts of this case, we are unable to conclude that the order of the
District Court is not reasonable, feasible and workable. However,
in seeking to define the scope of remedial power or the limits on
remedial power of courts in an area as sensitive as we deal with
here, words are poor instruments to convey the sense of basic
fairness inherent in equity. Substance, not semantics, must govern,
and we have sought to suggest the nature of limitations without
frustrating the appropriate scope of equity.

															At some point, these school authorities and others like them
should have achieved full compliance with this Court's decision in Brown I. The systems would then be "unitary" in the sense
required by our decisions in Green and Alexander. It does not follow that the communities served by such systems
will remain demographically stable, for, in a growing, mobile
society, few will do so. Neither Page 402 U. S. 32 school authorities nor district courts are constitutionally
required to make year-by-year adjustments of the racial composition
of student bodies once the affirmative duty to desegregate has been
accomplished and racial discrimination through official action is
eliminated from the system. This does not mean that federal courts
are without power to deal with future problems; but, in the absence
of a showing that either the school authorities or some other
agency of the State has deliberately attempted to fix or alter
demographic patterns to affect the racial composition of the
schools, further intervention by a district court should not be
necessary.

															For the reasons herein set forth, the judgment of the Court of
Appeals is affirmed as to those parts in which it affirmed the
judgment of the District Court. The order of the District Court,
dated August 7, 1970, is also affirmed. It is so ordered. * Together with No. 349, Charlotte-Mecklenburg Board of
Education et al. v. Swann et al., also on certiorari to the
same court.

															[ Footnote 1 ] McDaniel v. Barresi, No. 420, post, p. 402 U. S. 39 ; Davis v. Board of School Commissioners of Mobile County, No. 436, post, p. 402
U. S. 33 ; Moore v. Charlotte-Mecklenburg Board of
Education, No. 444, post, p. 402 U. S. 47 ; North Carolina State Board of Education v. Swann, No. 498, post, p. 402 U. S. 43 . For
purposes of this opinion the cross-petitions in Nos. 281 and 349
are treated as a single case, and will be referred to as "this
case."

															[ Footnote 2 ] Raney v. Board of Education, 391 U.
S. 443 (1968), and Monroe v. Board of
Commissioners, 391 U. S. 450 (1968).

															[ Footnote 3 ]

															A "satellite zone" is an area which is not contiguous with the
main attendance zone surrounding the school.

															[ Footnote 4 ]

															In its opinion and order of December 1, 1969, later incorporated
in the order appointing Dr. Finger as consultant, the District
Court stated:

															"Fixed ratios of pupils in particular schools will not be set.
If the board in one of its three tries had presented a plan for
desegregation, the court would have sought ways to approve
variations in pupil ratios. In default of any such plan from the
school board, the court will start with the thought . . . that
efforts should be made to reach a 71-29 ratio in the various
schools so that there will be no basis for contending that one
school is racially different from the others, but to understand
that variations from that norm may be unavoidable." 306 F.
Supp. 1299 , 1312.

															[ Footnote 5 ]

															The necessity for this is suggested by the situation in the
Fifth Circuit where 166 appeals in school desegregation cases were
heard between December 2, 1969, and September 24, 1970.

															[ Footnote 6 ]

															Elementary public school population (grades 1-6) grew from
17,447,000 in 1954 to 23, 103,000 in 1969; secondary school
population (beyond grade 6) grew from 11, 183,000 in 1954 to
20,775,000 in 1969. Digest of Educational Statistics, Table 3,
Office of Education Pub. 10024-64; Digest of Educational
Statistics, Table 28, Office of Education Pub. 10024-70.

															[ Footnote 7 ]

															It must be remembered that the District Court entered nearly a
score of orders and numerous sets of findings; and, for the most
part, each was accompanied by a memorandum opinion. Considering the
pressure under which the court was obliged to operate, we would not
expect that all inconsistencies and apparent inconsistencies could
be avoided. Our review, of course, is on the orders of February 5,
1970, as amended, and August 7, 1970.

															[ Footnote 8 ]

															The final board plan left 10 schools 86% to 100% Negro, and yet
categorically rejected the techniques of pairing and clustering as
part of the desegregation effort. As discussed below, the Charlotte
board was under an obligation to exercise every reasonable effort
to remedy the violation, once it was identified, and the suggested
techniques are permissible remedial devices. Additionally, as noted
by the District Court and Court of Appeals, the board plan did not
assign white students to any school unless the student population
of that school was at least 60% white. This was an arbitrary
limitation negating reasonable remedial steps.

															[ Footnote 9 ]

															In its August 3, 1970, memorandum holding that the District
Court plan was,"reasonable" under the standard laid down by the
Fourth Circuit on appeal, the District Court explained the approach
taken as follows:

															"This court has not ruled, and does not rule, that 'racial
balance' is required under the Constitution; nor that all black
schools in all cities are unlawful; nor that all school boards must
bus children or violate the Constitution; nor that the
particular order entered in this case would be correct in other
circumstances not before this court. "

															(Emphasis in original.)

															[ Footnote 10 ]

															The reliance of school authorities on the reference to the
"revision of . . . attendance areas into compact units," Brown II, at 349 U. S. 300 (emphasis supplied), is misplaced. The enumeration in that opinion
of considerations to be taken into account by district courts was
patently intended to be suggestive, rather than exhaustive. The
decision in Brown II to remand the cases decided in Brown I to local courts for the framing of specific
decrees was premised on a recognition that this Court could not at
that time foresee the particular means which would be required to
implement the constitutional principles announced. We said in Green, supra, at 391 U. S.
439 :

															"The obligation of the district courts, as it always has been,
is to assess the effectiveness of a proposed plan in achieving
desegregation. There is no universal answer to complex problems of
desegregation; there is obviously no one plan that will do the job
in every case. The matter must be assessed in light of the
circumstances present and the options available in each
instance."

															[ Footnote 11 ]

															During 1967-1968, for example, the Mobile board used 207 buses
to transport 22,094 students daily for an average round trip of 31
miles. During 1966-1967, 7,116 students in the metropolitan area
were bused daily. In Charlotte-Mecklenburg, the system as a whole,
without regard to desegregation plans, planned to bus approximately
23,000 students this year, for an average daily round trip of 15
miles. More elementary school children than high school children
were to be bused, and four- and five-year-olds travel the longest
routes in the system.

															[ Footnote 12 ]

															The District Court found that the school system would have to
employ 138 more buses than it had previously operated. But 105 of
those buses were already available, and the others could easily be
obtained. Additionally, it should be noted that North Carolina
requires provision of transportation for all students who are
assigned to schools more than one and one-half miles from their
homes. N.C.Gen.Stat. § 115-186(b) (1966).


U.S. Supreme Court Frontiero v. Richardson, 411
U.S. 677 (1973) Frontiero v.
Richardson No. 71-1694 Argued January 17,
1973 Decided May 14, 1973 411
U.S. 677 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA Syllabus A married woman Air Force officer (hereafter appellant) sought
increased benefits for her husband as a "dependent" under 37 U.S.C.
§§ 401, 403, and 10 U.S.C. §§ 1072, 1076. Those statutes provide,
solely for administrative convenience, that spouses of male members
of the uniformed services are dependents for purposes of obtaining
increased quarters allowances and medical and dental benefits, but
that spouses of female members are not dependents unless they are
in fact, dependent for over one-half of their support. When her
application was denied for failure to satisfy the statutory
dependency standard, appellant and her husband brought this suit in
District Court, contending that the statutes deprived servicewomen
of due process. From that Court's adverse ruling, they took a
direct appeal. Held: The judgment is reversed. Pp. 411 U. S.
682 -691; 411 U. S.
691 -692. 341 F.
Supp. 201 , reversed.

															MR. JUSTICE BRENNAN, joined by MR. JUSTICE DOUGLAS, MR. JUSTICE
WHITE, and MR. JUSTICE MARSHALL, concluded that 37 U.S.C. §§ 401,
403 and 10 U.S.C. §§ 1072, 1076, as inherently suspect statutory
classifications based on sex, are so unjustifiably discriminatory
as to violate the Due Process Clause of the Fifth Amendment. Pp. 411 U. S.
682 -691.

															MR. JUSTICE STEWART concluded that the challenged statutes work
an invidious discrimination in violation of the Constitution. Reed v. Reed, 404 U. S. 71 . P. 411 U. S.
691 .

															MR. JUSTICE POWELL, joined by THE CHIEF JUSTICE and MR. JUSTICE
BLACKMUN, while agreeing that the statutes deprive servicewomen of
due process, concluded that, in the light of Reed v. Reed, 404 U. S. 71 , and
the fact that the Equal Rights Amendment has been submitted to the
States for ratification, it is inappropriate to decide at this time
whether sex is a suspect classification. Pp. 411 U. S.
691 -692. Page 411 U. S. 678 BRENNAN, J., announced the Court's judgment and delivered an
opinion, in which DOUGLAS, WHITE, and MARSHALL, JJ., joined.
STEWART, J., filed a statement concurring in the judgment, post, p. 411 U. S. 691 .
POWELL, J., filed an opinion concurring in the judgment, in which
BURGER, C.J., and BLACKMUN, J., joined, post, p. 411 U. S. 691 .
REHNQUIST, J., filed a dissenting statement, post, p. 411 U. S.
691 .

															MR. JUSTICE BRENNAN announced the judgment of the Court and an
opinion in which MR. JUSTICE DOUGLAS, MR. JUSTICE WHITE, and MR.
JUSTICE MARSHALL join.

															The question before us concerns the right of a female member of
the uniformed services [ Footnote
1 ] to claim her spouse as a "dependent" for the purposes of
obtaining increased quarters allowances and medical and dental
benefits under 37 U.S.C. §§ 401, 403, and 10 U.S.C. §§ 1072, 1076,
on an equal footing with male members. Under these statutes, a
serviceman may claim his wife as a "dependent" without regard to
whether she is in fact, dependent upon him for any part of her
support. 37 U.S.C.§ 401(1); 10 U.S.C.§ 1072(2)(A). A servicewoman,
on the other hand, may not claim her husband as a "dependent" under
these programs unless he is in fact, dependent upon her for over
one-half of his support. Page 411 U. S. 679 37 U.S.C. § 401; 10 U.S.C. § 1072(2)(C). [ Footnote 2 ] Thus, the question for decision is
whether this difference in treatment constitutes an
unconstitutional discrimination against servicewomen in violation
of the Due Process Clause of the Fifth Amendment. A three-judge
District Court for the Middle District of Alabama, one judge
dissenting, rejected this contention and sustained the
constitutionality of the provisions of the statutes making this
distinction. 341 F.
Supp. 201 (1972). We noted probable jurisdiction. 409 U.S. 840
(1972). We reverse. I In an effort to attract career personnel through reenlistment,
Congress established, in 37 U.S.C. § 401 et seq., and 10
U.S.C. § 1071 et seq., a scheme for the provision of
fringe benefits to members of the uniformed services on a
competitive basis with business and industry. [ Footnote 3 ] Thus, under 37 U.S.C. § 403, a member
of the uniformed services with dependents is entitled to an Page 411 U. S. 680 increased "basic allowance for quarters" and, under 10 U.S.C. §
1076, a member's dependents are provided comprehensive medical and
dental care.

															Appellant Sharron Frontiero, a lieutenant in the United States
Air Force, sought increased quarters allowances, and housing and
medical benefits for her husband, appellant Joseph Frontiero, on
the ground that he was her "dependent." Although such benefits
would automatically have been granted with respect to the wife of a
male member of the uniformed services, appellant's application was
denied because she failed to demonstrate that her husband was
dependent on her for more than one-half of his support. [ Footnote 4 ] Appellants then commenced
this suit, contending that, by making this distinction, the
statutes unreasonably discriminate on the basis of sex in violation
of the Due Process Clause of the Fifth Amendment. [ Footnote 5 ] In essence, appellants asserted
that the discriminatory impact of the statutes is twofold: first,
as a procedural matter, a female member is required to demonstrate
her spouse's dependency, while no such burden is imposed upon male
members; and, second, as a substantive matter, a male member who
does not provide more than one-half of his wife's support receives
benefits, while a similarly situated female member is denied such
benefits. Appellants therefore sought a permanent injunction Page 411 U. S. 681 against the continued enforcement of these statutes and an order
directing the appellees to provide Lieutenant Frontiero with the
same housing and medical benefits that a similarly situated male
member would receive.

															Although the legislative history of these statutes sheds
virtually no light on the purposes underlying the differential
treatment accorded male and female members, [ Footnote 6 ] a majority of the three-judge District
Court surmised that Congress might reasonably have concluded that,
since the husband in our society is generally the "breadwinner" in
the family -- and the wife typically the "dependent" partner --

															"it would be more economical to require married female members
claiming husbands to prove actual dependency than to extend the
presumption of dependency to such members."

															341 F. Supp. at 207. Indeed, given the fact that approximately
99% of all members of the uniformed services are male, the
District Page 411 U. S. 682 Court speculated that such differential treatment might
conceivably lead to a "considerable saving of administrative
expense and manpower." Ibid. II At the outset, appellants contend that classifications based
upon sex, like classifications based upon race, [ Footnote 7 ] alienage, [ Footnote 8 ] and national origin, [ Footnote 9 ] are inherently suspect, and must
therefore be subjected to close judicial scrutiny. We agree, and,
indeed, find at least implicit support for such an approach in our
unanimous decision only last Term in Reed v. Reed, 404 U. S. 71 (1971).

															In Reed, the Court considered the constitutionality of
an Idaho statute providing that, when two individuals are otherwise
equally entitled to appointment as administrator of an estate, the
male applicant must be preferred to the female. Appellant, the
mother of the deceased, and appellee, the father, filed competing
petitions for appointment as administrator of their son's estate.
Since the parties, as parents of the deceased, were members of the
same entitlement class, the statutory preference was invoked, and
the father's petition was therefore granted. Appellant claimed that
this statute, by giving a mandatory preference to males over
females without regard to their individual qualifications, violated
the Equal Protection Clause of the Fourteenth Amendment.

															The Court noted that the Idaho statute

															"provides that different treatment be accorded to the applicants
on the basis of their sex; it thus establishes a classification
subject Page 411 U. S. 683 to scrutiny under the Equal Protection Clause."

															404 U.S. at 404 U. S. 75 .
Under "traditional" equal protection analysis, a legislative
classification must be sustained unless it is "patently arbitrary"
and bears no rational relationship to a legitimate governmental
interest. See Jefferson v. Hackney, 406 U.
S. 535 , 406 U. S. 546 (1972); Richardson v. Belcher, 404 U. S.
78 , 404 U. S. 81 (1971); Flemming v. Nestor, 363 U.
S. 603 , 363 U. S. 611 (1960); McGowan v. Maryland, 366 U.
S. 420 , 366 U. S. 426 (1961); Dandridge v. Williams, 397 U.
S. 471 , 397 U. S. 485 (1970).

															In an effort to meet this standard, appellee contended that the
statutory scheme was a reasonable measure designed to reduce the
workload on probate courts by eliminating one class of contests.
Moreover, appellee argued that the mandatory preference for male
applicants was, in itself, reasonable, since "men [are], as a rule,
more conversant with business affairs than . . . women." [ Footnote 10 ] Indeed, appellee
maintained that

															"it is a matter of common knowledge that women still are not
engaged in politics, the professions, business or industry to the
extent that men are. [ Footnote
11 ]"

															And the Idaho Supreme Court, in upholding the constitutionality
of this statute, suggested that the Idaho Legislature might
reasonably have "concluded that, in general, men are better
qualified to act as an administrator than are women." [ Footnote 12 ]

															Despite these contentions, however, the Court held the statutory
preference for male applicants unconstitutional. In reaching this
result, the Court implicitly rejected appellee's apparently
rational explanation of the statutory scheme, and concluded that,
by ignoring the individual qualifications of particular applicants,
the challenged statute provided "dissimilar treatment for men and
women who are . . . similarly situated." 404 U.S. Page 411 U. S. 684 at 404 U. S. 77 .
The Court therefore held that, even though the State's interest in
achieving administrative efficiency "is not without some
legitimacy,"

															"[t]o give a mandatory preference to members of either sex over
members of the other merely to accomplish the elimination of
hearings on the merits is to make the very kind of arbitrary
legislative choice forbidden by the [Constitution]. . . ." Id. at 404 U. S. 76 .
This departure from "traditional" rational basis analysis with
respect to sex-based classifications is clearly justified.

															There can be no doubt that our Nation has had a long and
unfortunate history of sex discrimination. [ Footnote 13 ] Traditionally, such discrimination
was rationalized by an attitude of "romantic paternalism" which, in
practical effect, put women not on a pedestal, but in a cage.
Indeed, this paternalistic attitude became so firmly rooted in our
national consciousness that, 100 years ago, a distinguished Member
of this Court was able to proclaim:

															"Man is, or should be, woman's protector and defender. The
natural and proper timidity and delicacy which belongs to the
female sex evidently unfits it for many of the occupations of civil
life. The constitution of the family organization, which is founded
in the divine ordinance as well as in the nature of things,
indicates the domestic sphere as that which properly belongs to the
domain and functions of womanhood. The harmony, not to say
identity, of interests and views which belong, or should belong, to
the family institution is repugnant to the idea of a woman adopting
a distinct and Page 411 U. S. 685 independent career from that of her husband. . . ."

															". . . The paramount destiny and mission of woman are to fulfil
the noble and benign offices of wife and mother. This is the law of
the Creator." Bradwell v.
State , 16 Wall. 130, 83 U. S. 141 (1873) (Bradley, J., concurring).

															As a result of notions such as these, our statute books
gradually became laden with gross, stereotyped distinctions between
the sexes, and, indeed, throughout much of the 19th century, the
position of women in our society was, in many respects, comparable
to that of blacks under the pre-Civil War slave codes. Neither
slaves nor women could hold office, serve on juries, or bring suit
in their own names, and married women traditionally were denied the
legal capacity to hold or convey property or to serve as legal
guardians of their own children. See generally L.
Kanowitz, Women and the Law: The Unfinished Revolution 5-6 (1969);
G. Myrdal, An American Dilemma 1073 (20th anniversary ed.1962). And
although blacks were guaranteed the right to vote in 1870, women
were denied even that right -- which is itself "preservative of
other basic civil and political rights" [ Footnote 14 ] -- until adoption of the Nineteenth
Amendment half a century later.

															It is true, of course, that the position of women in America has
improved markedly in recent decades. [ Footnote 15 ] Page 411 U. S. 686 Nevertheless, it can hardly be doubted that, in part because of
the high visibility of the sex characteristic, [ Footnote 16 ] women still face pervasive,
although at times more subtle, discrimination in our educational
institutions, in the job market and, perhaps most conspicuously, in
the political arena. [ Footnote
17 ] See generally K. Amundsen, The Silenced Majority:
Women and American Democracy (1971); The President's Task Force on
Women's Rights and Responsibilities, A Matter of Simple Justice
(1970).

															Moreover, since sex, like race and national origin, is an
immutable characteristic determined solely by the accident of
birth, the imposition of special disabilities upon the members of a
particular sex because of their sex would seem to violate "the
basic concept of our system that legal burdens should bear some
relationship to individual responsibility. . . ." Weber v.
Aetna Casualty & Surety Co., 406 U.
S. 164 , 406 U. S. 175 (1972). And what differentiates sex from such nonsuspect statuses
as intelligence or physical disability, and aligns it with the
recognized suspect criteria, is that the sex characteristic
frequently bears no relation to ability to perform or contribute to
society. [ Footnote 18 ] As a
result, statutory distinctions Page 411 U. S. 687 between the sexes often have the effect of invidiously
relegating the entire class of females to inferior legal status
without regard to the actual capabilities of its individual
members.

															We might also note that, over the past decade, Congress has
itself manifested an increasing sensitivity to sex-based
classifications. In Tit. VII of the Civil Rights Act of 1964, for
example, Congress expressly declared that no employer, labor union,
or other organization subject to the provisions of the Act shall
discriminate against any individual on the basis of "race, color,
religion, sex, or national origin." [ Footnote 19 ] Similarly, the Equal Pay Act of
1963 provides that no employer covered by the Act "shall
discriminate . . . between employees on the basis of sex. "
[ Footnote 20 ] And § 1 of the
Equal Rights Amendment, passed by Congress on March 22, 1972, and
submitted to the legislatures of the States for ratification,
declares that "[e]quality of rights under the law shall not be
denied or abridged by the United States or by any State on account
of sex." [ Footnote 21 ] Thus,
Congress itself has concluded that classifications based upon sex
are inherently invidious, and this conclusion of a coequal Page 411 U. S. 688 branch of Government is not without significance to the question
presently under consideration. Cf. Oregon v. Mitchell, 400 U. S. 112 , 400 U. S. 240 , 400 U. S.
248 -249 (1970) (opinion of BRENNAN, WHITE, and MARSHALL,
JJ.); Katzenbach v. Moran, 384 U.
S. 641 , 384 U. S.
648 -649 (1966).

															With these considerations in mind, we can only conclude that
classifications based upon sex, like classifications based upon
race, alienage, or national origin, are inherently suspect, and
must therefore be subjected to strict judicial scrutiny. Applying
the analysis mandated by that stricter standard of review, it is
clear that the statutory scheme now before us is constitutionally
invalid. III The sole basis of the classification established in the
challenged statutes is the sex of the individuals involved. Thus,
under 37 U.S.C. §§ 401, 403, and 10 U.S.C. §§ 1072, 1076, a female
member of the uniformed services seeking to obtain housing and
medical benefits for her spouse must prove his dependency in fact,
whereas no such burden is imposed upon male members. In addition,
the statutes operate so as to deny benefits to a female member,
such as appellant Sharron Frontiero, who provides less than
one-half of her spouse's support, while at the same time granting
such benefits to a male member who likewise provides less than
one-half of his spouse's support. Thus, to this extent, at least,
it may fairly be said that these statutes command "dissimilar
treatment for men and women who are . . . similarly situated." Reed v. Reed, 404 U.S. at 404 U. S.
77 .

															Moreover, the Government concedes that the differential
treatment accorded men and women under these statutes serves no
purpose other than mere "administrative convenience." In essence,
the Government maintains that, as an empirical matter, wives in our
society frequently are dependent upon their husbands, while
husbands Page 411 U. S. 689 rarely are dependent upon their wives. Thus, the Government
argues that Congress might reasonably have concluded that it would
be both cheaper and easier simply conclusively to presume that
wives of male members are financially dependent upon their
husbands, while burdening female members with the task of
establishing dependency in fact. [ Footnote 22 ]

															The Government offers no concrete evidence, however, tending to
support its view that such differential treatment in fact saves the
Government any money. In order to satisfy the demands of strict
judicial scrutiny, the Government must demonstrate, for example,
that it is actually cheaper to grant increased benefits with
respect to all male members than it is to determine which male
members are, in fact, entitled to such benefits, and to grant
increased benefits only to those members whose wives actually meet
the dependency requirement. Here, however, there is substantial
evidence that, if put to the test, many of the wives of male
members would fail to qualify for benefits. [ Footnote 23 ] And in light of the fact that
the Page 411 U. S. 690 dependency determination with respect to the husbands of female
members is presently made solely on the basis of affidavits, rather
than through the more costly hearing process, [ Footnote 24 ] the Government's explanation of the
statutory scheme is, to say the least, questionable.

															In any case, our prior decisions make clear that, although
efficacious administration of governmental programs is not without
some importance, "the Constitution recognizes higher values than
speed and efficiency." Stanley v. Illinois, 405 U.
S. 645 , 405 U. S. 656 (1972). And when we enter the realm of "strict judicial scrutiny,"
there can be no doubt that "administrative convenience" is not a
shibboleth, the mere recitation of which dictates
constitutionality. See Shapiro v. Thompson, 394 U.
S. 618 (1969); Carrington v. Rash, 380 U. S.
89 (1965). On the contrary, any statutory scheme which
draws a sharp line between the sexes, solely for the purpose of
achieving administrative convenience, necessarily commands
"dissimilar treatment for men and women who are . . . similarly
situated," and therefore involves the "very kind of arbitrary
legislative choice forbidden by the [Constitution]. . . ." Reed
v. Reed, 404 U.S. at 404 U. S. 77 , 404 U. S. 76 . We
therefore conclude that, by according differential treatment to
male and female members of the uniformed services for the sole
purpose of achieving administrative Page 411 U. S. 691 convenience, the challenged statutes violate the Due Process
Clause of the Fifth Amendment insofar as they require a female
member to prove the dependency of her husband. [ Footnote 25 ] Reversed. MR. JUSTICE STEWART concurs in the judgment, agreeing that the
statutes before us work an invidious discrimination in violation of
the Constitution. Reed v. Reed, 404 U. S.
71 .

															MR. JUSTICE REHNQUIST dissents for the reasons stated by Judge
Rives in his opinion for the District Court, Frontiero v.
Laird, 341 F.
Supp. 201 (1972).

															[ Footnote 1 ]

															The "uniformed services" include the Army, Navy, Air Force,
Marine Corps, Coast Guard, Environmental Science Services
Administration, and Public Health Service. 37 U.S.C. § 101(3); 10
U.S.C. § 1072(1).

															[ Footnote 2 ]

															Title 37 U.S.C. § 401 provides in pertinent part:

															"In this chapter, 'dependent,' with respect to a member of a
uniformed service, means --"

															"(1) his spouse;"

															" * * * *" "However, a person is not a dependent of a female member unless
he is in fact, dependent on her for over one-half of his support. .
. ."

															Title 10 U.S.C. § 1072(2) provides in pertinent part:

															"'Dependent,' with respect to a member . . . of a uniformed
service, means --"

															"(A) the wife;"

															" * * * *" "(C) the husband, if he is in fact, dependent on the member . .
. for over one-half of his support. . . ."

															[ Footnote 3 ] See 102 Cong.Rec. 3849-3850 (Cong. Kilday), 8043 (Sen.
Saltonstall); 95 Cong.Rec. 7662 (Cong. Kilday), 7664 (Cong. Short),
7666 (Cong. Havenner), 7667 (Cong. Bates), 7671 (Cong. Price). See also 10 U.S.C. § 1071.

															[ Footnote 4 ]

															Appellant Joseph Frontiero is a full-time student at Huntingdon
College in Montgomery, Alabama. According to the agreed stipulation
of facts, his living expenses, including his share of the household
expenses, total approximately $354 per month. Since he receives
$205 per month in veterans' benefits, it is clear that he is not
dependent upon appellant Sharron Frontiero for more than one-half
of his support.

															[ Footnote 5 ]

															"[W]hile the Fifth Amendment contains no equal protection
clause, it does forbid discrimination that is 'so unjustifiable as
to be violative of due process.'" Schneider v. Rusk, 377 U. S. 163 , 377 U. S. 168 (1964); see Shapiro v. Thompson, 394 U.
S. 618 , 394 U. S.
641 -642 (1969); Bolling v. Sharpe, 347 U.
S. 497 (1954).

															[ Footnote 6 ]

															The housing provisions, set forth in 37 U.S.C. § 401 et
seq., were enacted as part of the Career Compensation Act of
1949, which established a uniform pattern of military pay and
allowances, consolidating and revising the piecemeal legislation
that had been developed over the previous 40 years. See H.R.Rep. No. 779, 81st Cong., 1st Sess.; S.Rep. No. 733, 81st
Cong., 1st Sess. The Act apparently retained in substance the
dependency definitions of § 4 of the Pay Readjustment Act of 1942
(56 Stat. 361), as amended by § 6 of the Act of September 7, 1944
(58 Stat. 730), which required a female member of the service to
demonstrate her spouse's dependency. It appears that this provision
was itself derived from unspecified earlier enactments. See S.Rep. No. 917, 78th Cong., 2d Sess., 4.

															The medical benefits legislation, 10 U.S.C. § 1071 et
seq., was enacted as the Dependents' Medical Care Act of 1956.
As such, it was designed to revise and make uniform the existing
law relating to medical services for military personnel. It, too,
appears to have carried forward, without explanation, the
dependency provisions found in other military pay and allowance
legislation. See H.R.Rep. No. 1805, 84th Cong., 2d Sess.;
S.Rep. No. 1878, 84th Cong., 2d Sess.

															[ Footnote 7 ] See Loving v. Virginia, 388 U. S.
1 , 388 U. S. 11 (1967); McLaughlin v. Florida, 379 U.
S. 184 , 379 U. S.
191 -192 (1964); Bolling v. Sharpe, supra, at 347 U. S.
499 .

															[ Footnote 8 ] See Graham v. Richardson, 403 U.
S. 365 , 403 U. S. 372 (1971).

															[ Footnote 9 ] See Oyama v. California, 332 U.
S. 633 , 332 U. S.
644 -646 (1948); Korematsu v. United States, 323 U. S. 214 , 323 U. S. 216 (1944); Hirabayashi v. United States, 320 U. S.
81 , 320 U. S. 100 (1943).

															[ Footnote 10 ]

															Brief for Appellee in No. 70-4, O.T. 1971, Reed v.
Reed, p. 12.

															[ Footnote 11 ] Id. at 12-13.

															[ Footnote 12 ] Reed v. Reed, 93 Idaho 511, 514, 465 P.2d 635, 638
(1970).

															[ Footnote 13 ]

															Indeed, the position of women in this country at its inception
is reflected in the view expressed by Thomas Jefferson that women
should be neither seen nor heard in society's decisionmaking
councils. See M. Gruberg, Women in American Politics 4
(1968). See also 2 A. de Tocqueville, Democracy in America
(Reeves trans.1948).

															[ Footnote 14 ] Reynolds v. Sims, 377 U. S. 533 , 377 U. S. 562 (1964); see Dunn v. Blumstein, 405 U.
S. 330 , 405 U. S. 336 (1972); Kramer v. Union Free School District, 395 U.
S. 621 , 395 U. S. 626 (1969); Yick Wo v. Hopkins, 118 U.
S. 356 , 118 U. S. 370 (1886).

															[ Footnote 15 ] See generally The President's Task Force on Women's
Rights and Responsibilities, A Matter of Simple Justice (1970); L.
Kanowitz, Women and the Law: The Unfinished Revolution (1969); A.
Montagu, Man's Most Dangerous Myth (4th ed.1964); The President's
Commission on the Status of Women, American Women (1963).

															[ Footnote 16 ] See, e.g., Note, Sex Discrimination and Equal
Protection: Do We Need a Constitutional Amendment?, 84 Harv.L.Rev.
1499, 1507 (1971).

															[ Footnote 17 ]

															It is true, of course, that, when viewed in the abstract, women
do not constitute a small and powerless minority. Nevertheless, in
part because of past discrimination, women are vastly
underrepresented in this Nation's decisionmaking councils. There
has never been a female President, nor a female member of this
Court. Not a single woman presently sits in the United States
Senate, and only 14 women hold seats in the House of
Representatives. And, as appellants point out, this
underrepresentation is present throughout all levels of our State
and Federal Government. See Joint Reply Brief of
Appellants and American Civil Liberties Union ( Amicus
Curiae ) 9.

															[ Footnote 18 ] See, e.g., Developments in the Law -- Equal Protection,
82 Harv.L.Rev. 1065, 1173-1174 (1969).

															[ Footnote 19 ]

															42 U.S.C. §§ 2000e-2(a), (b), (c) (emphasis added). See
generally Sape & Hart, Title VII Reconsidered: The Equal
Employment Opportunity Act of 1972, 40 Geo.Wash.L.Rev. 824 (1972);
Developments in the Law -- Employment Discrimination and Title VII
of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109 (1971).

															[ Footnote 20 ]

															29 U.S.C. § 206(d) (emphasis added). See generally Murphy, Female Wage Discrimination: A Study of the Equal Pay Act
1963-1970, 39 U.Cin.L.Rev. 615 (1970).

															[ Footnote 21 ]

															H.R.J.Res. No. 208, 92d Cong., 2d Sess. (1972). In conformity
with these principles, Congress in recent years has amended various
statutory schemes similar to those presently under consideration so
as to eliminate the differential treatment of men and women. See 5 U.S.C. § 2108, as amended, 85 Stat. 644; 5 U.S.C. §
7152, as amended, 85 Stat. 644; 5 U.S.C. § 8341, as amended, 84
Stat. 1961; 38 U.S.C. § 102(b), as amended, 86 Stat. 1092.

															[ Footnote 22 ]

															It should be noted that these statutes are not in any sense
designed to rectify the effects of past discrimination against
women. See Gruenwald v. Gardner, 390 F.2d 591 (CA2), cert. denied, 393 U.S. 982 (1968); cf. Jones v. Alfred
H. Mayer Co., 392 U. S. 409 (1968); South Carolina v. Katzenbach, 383 U.
S. 301 (1966). On the contrary, these statutes seize
upon a group -- women -- who have historically suffered
discrimination in employment, and rely on the effects of this past
discrimination as a justification for heaping on additional
economic disadvantages. Cf. Gaston County v. United
States, 395 U. S. 285 , 395 U. S.
296 -297 (1969).

															[ Footnote 23 ]

															In 1971, 43% of all women over the age of 16 were in the labor
force, and 18% of all women worked full-time 12 months per year. See U.S. Women's Bureau, Dept. of Labor, Highlights of
Women's Employment & Education 1 (W.B.Pub. No. 72-191,
Mar.1972). Moreover, 41.5% of all married women are employed. See U.S. Bureau of Labor Statistics, Dept. of Labor, Work
Experience of the Population in 1971, p. 4 (Summary Special Labor
Force Report, Aug.1972). It is also noteworthy that, while the
median income of a male member of the armed forces is approximately
$3,686, see The Report of the President's Commission on an
All-Volunteer Armed Force 51, 181 (1970), the median income for all
women over the age of 14, including those who are not employed, is
approximately $2,237. See Statistical Abstract of the
United States Table No. 535 (1972) Source: U.S. Bureau of the
Census, Current Population Reports Series P-60, No. 80. Applying
the statutory definition of "dependency" to these statistics, it
appears that, in the "median" family, the wife of a male member
must have personal expenses of approximately $4,474, or about 75%
of the total family income, in order to qualify as a
"dependent."

															[ Footnote 24 ]

															Tr. of Oral Arg. 27-28.

															[ Footnote 25 ]

															As noted earlier, the basic purpose of these statutes was to
provide fringe benefits to members of the uniformed services in
order to establish a compensation pattern which would attract
career personnel through reenlistment. See n 3, supra, and accompanying text.
Our conclusion in no wise invalidates the statutory schemes except
insofar as they require a female member to prove the dependency of
her spouse. See Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972); Levy v. Louisiana, 391 U. S.
68 (1968); Moritz v. Commissioner of Internal
Revenue, 469 F.2d 466 (CA10 1972). See also 1 U.S.C.
§ 1.

															MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE
BLACKMUN join, concurring in the judgment.

															I agree that the challenged statutes constitute an
unconstitutional discrimination against servicewomen in violation
of the Due Process Clause of the Fifth Amendment, but I cannot join
the opinion of MR. JUSTICE BRENNAN, which would hold that all
classifications based upon sex, "like classifications based upon
race, alienage, and national origin," are "inherently suspect, and
must therefore be subjected to close judicial scrutiny." Ante at 411 U. S. 682 .
It is unnecessary for the Court in this case to Page 411 U. S. 692 characterize sex as a suspect classification, with all of the
far-reaching implications of such a holding. Reed v. Reed, 404 U. S. 71 (1971), which abundantly supports our decision today, did not add
sex to the narrowly limited group of classifications which are
inherently suspect. In my view, we can and should decide this case
on the authority of Reed, and reserve for the future any
expansion of its rationale.

															There is another, and I find compelling, reason for deferring a
general categorizing of sex classifications as invoking the
strictest test of judicial scrutiny. The Equal Rights Amendment,
which if adopted will resolve the substance of this precise
question, has been approved by the Congress and submitted for
ratification by the States. If this Amendment is duly adopted, it
will represent the will of the people accomplished in the manner
prescribed by the Constitution. By acting prematurely and
unnecessarily, as I view it, the Court has assumed a decisional
responsibility at the very time when state legislatures,
functioning within the traditional democratic process, are debating
the proposed Amendment. It seems to me that this reaching out to
preempt by judicial action a major political decision which is
currently in process of resolution does not reflect appropriate
respect for duly prescribed legislative processes.

															There are times when this Court, under our system, cannot avoid
a constitutional decision on issues which normally should be
resolved by the elected representatives of the people. But
democratic institutions are weakened, and confidence in the
restraint of the Court is impaired, when we appear unnecessarily to
decide sensitive issues of broad social and political importance at
the very time they are under consideration within the prescribed
constitutional processes.