Vanderbilt Law Review

First Page



Referenda effect basic constitutional objectives by allowing individuals to participate equally in the governing process. The Supreme Court recently relied on the equal protection clause of the fourteenth amendment' to invalidate a referendum procedure in Washington v. Seattle School District No. 1. A state initiative,which received support from a majority of the voting electorate,effectively forbade local school boards from implementing mandatory student reassignment programs aimed at eliminating de facto racial imbalance in state schools unless the electorate approved the proposed program. In finding an equal protection violation, the Court for the first time relied on a doctrine that it developed thirteen years earlier in Hunter v. Erickson. The Hunter doctrine provides that if state action reallocates governing power concerning a racial issue to place unique procedural burdens on minority interests, then the action embodies an explicitly racial classification, receives heightened judicial scrutiny, and must meet a heavy burden of justification.

Ironically, the state school board in Seattle School District,acting under its authority to formulate educational policy, could have adopted the referendum result as a board policy without running afoul of the fourteenth amendment. Thus, the electorate decision not to bus students for racial purposes alone did not contravene the United States Constitution. Rather, the requirement of approval by referendum produced the constitutional violation.

The Court's reaffirmation and extension of the Hunter doctrine in Seattle School District raises serious questions about the scope of the doctrine. This Note analyzes the. theoretical bases of the Hunter doctrine and concludes that the Court has constructed a theory by which it can usurp without constitutional authority the most fundamental of state democratic powers: the referendum.Part II of this Note briefly discusses relevant equal protection theory. Part III sets forth the Hunter doctrine and examines subsequent Supreme Court decisions that have applied the doctrine.Part IV analyzes the reasons that courts have refused to rely on Hunter in assessing equal protection claims. Finally, part V suggests that the Hunter doctrine is an unsound equal protection theory because it subjects a traditional democratic process-the referendum-to constitutional attack.