Bazemore v. Friday

Justice White,

with whom The Chief Justice, Justice Powell, Justice Rehnquist, and Justice O’Connor join, concurring.

We agree with Justice Brennan’s concurring opinion explaining the Court’s reasoning insofar as the Court vacates the decision of the Court of Appeals. We write separately to affirm the Court of Appeals in rejecting the allegations of discrimination in the operation of 4-H and Homemaker Clubs. Prior to 1965, the Extension Service maintained segregated 4-H and Homemaker Clubs, and it is true that when this suit was started and when judgment was entered there were a great many all-white and all-black clubs. However, it is undisputed that in response to the Civil Rights Act of 1964 the Service discontinued its segregated club policy and opened any club, then existing or newly organized, to any otherwise eligible person regardless of race. The District Court could find no evidence of any discrimination since that time in either services or membership and concluded as a matter of fact that any racial imbalance existing in any of the clubs was the result of wholly voluntary and unfettered choice of private individuals. App. to Pet. for Cert, in No. 85-93, p. 172a. The court found that “the Extension Service has had a policy that all voluntary clubs be organized without regard to race and that each club certify that its membership is open to all persons regardless of race; that it instructs its agents to encourage the formation of new clubs without regard to race; that it publishes its policies in the media; that all of its club work and functions above the local community level are being conducted on a fully integrated basis; that its 4-H camps are fully integrated and have been for over ten years; and that no person has been denied membership in any club on account of race.” Id., at 181a. The Court of Appeals did *408not disturb any of the findings of the District Court and affirmed its judgment with respect to the Clubs.

In view of the District Court’s findings, this case presents no current violation of the Fourteenth Amendment since the Service has discontinued its prior discriminatory practices and has adopted a wholly neutral admissions policy. The mere continued existence of single-race clubs does not make out a constitutional violation. As the District Court found, one’s choice of a Club is entirely voluntary. Green v. School Board of New Kent County, 391 U. S. 430 (1968), held that voluntary choice programs in the public schools were inadequate and that the schools must take affirmative action to integrate their student bodies. It was the effective predicate for imposing busing and pupil assignment programs to end dual school systems, but it has no application to the voluntary associations supported by the Extension Service. Even if the Service in effect assigned blacks and whites to separate clubs prior to 1965, it did not do so after that time. While schoolchildren must go to school, there is no compulsion to join 4-H or Homemaker Clubs, and while school boards customarily have the power to create school attendance areas and otherwise designate the school that particular students may attend, there is no statutory or regulatory authority to deny a young person the right to join any Club he or she wishes to join. Nor does the Constitution require more than what the District Court and the Court of Appeals found the Service has done in this case to disestablish segregation in its Clubs. Our cases requiring parks and the like to be desegregated lend no support for requiring more than what has been done in this case. And however sound Green may have been in the context of the public schools, it has no application to this wholly different milieu. We agree with the submission of the United States in this respect.

Petitioners rely on the Department of Agriculture regulation requiring the Service to take “affirmative action” to overcome the effects of prior discrimination in its programs. *409But the Service has taken affirmative action to change its policy and to establish what is concededly a nondiscriminatory admissions system, and it is the position of the United States and the federal parties that there has been full compliance with the regulation. In view of the deference due the Department’s interpretation of its own regulation, we cannot accept petitioner’s submission that the regulation has been violated.