(dissenting).
Akron Board of Education and Conrad C. Ott, as Superintendent of Schools, filed suit in the District Court against the State Board of Education of Ohio, and others, seeking to invalidate a decision of the State Board approving the transfer of a small segment of territory in the Akron School District, known as Sackett Hills, to the adjoining Summit County Boston-Northampton School District.
The complaint was filed under the Civil Rights Act, 42 U.S.C. § 1983 and 28 U.S.C.A. § 1343, alleging in substance that the School Board’s and Superintendent Ott’s civil rights and constitutional rights under the Fourteenth Amendment to the Constitution were violated by the transfer since it affected the racial balance of the schools to the extent of six pupils and it would deprive the School Board of tax revenues.
The parties filed a written stipulation, in which they agreed to the facts.
The State Board filed a motion to dismiss the amended complaint on the grounds (1) that the Akron Board did not have standing to maintain the suit, and (2) that the Court was without jurisdiction. The District Court, in a well-considered opinion, held that the plaintiffs lacked standing to sue, and that the Court was without jurisdiction. It dismissed the complaint. The plaintiffs have appealed. I would affirm.
In essence, this suit was brought by one body politic of the State of Ohio against another body politic of the same state, the latter being the superior of the former. No precedent for such a suit has been found. We will show that federal law, as declared by the Supreme Court, does not entertain such suits.
The only remedy of the Akron School Board is to review the decision of the State Board under Section 2506.01 of Ohio Rev.Code (1972 Supp.) which provides in relevant part:
“Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department or other division of any political subdivision of the state may be reviewed by the common pleas court of the county in which the principal office of the political subdivision is located . . . .”
Section 2506.04, Ohio Rev.Code (1972 Supp.), vests full power and authority in the common pleas court to determine all questions, including alleged constitutional violations. It provides:
“The court may find that the order, adjudication or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication or decision, or remand the cause to the officer or body appealed from with instructions to enter an order consistent with the findings or opinion of the court. The judgment of the court may be appealed by any party on questions of law pursuant to sections 2505.1 to 2505.45, inclusive, of the Revised Code.”
*1294The Akron Board of Education is a body politic and corporate entity, organized and existing by virtue of Ohio Rev. Code, Sec. 3313.17. It is empowered to manage and control education in its district and it has the power to sue and to be sued with respect to the rights and responsibilities conferred upon it by law.
The State Board of Education of Ohio likewise is a body politic and corporate organized and existing by virtue of Ohio Rev.Code, Secs. 3301.01.1 to 3301.07.1. It has general supervisory power over the system of education throughout the state. Ohio Rev.Code, Sec. 3301.07. In addition, the Legislature delegated to the State Board special power with respect to the transfer of portions of one school district to another school district. Section 3311.24, Ohio Rev.Code, provides in relevant part:
“If the board of education of a city school district . . . deems it advisable to transfer territory from such district . . . to a county school district, or if a petition, signed by seventy-five per cent of the qualified electors residing within that portion of a city or exempted village school district proposed to be transferred voting at the last general election, requests such a transfer. . . .
“Not later than the first day of September the state board of education shall either approve or disapprove a proposed transfer of territory filed with it and provided by this section and shall notify, in writing, the boards of education of the districts affected by such proposed transfer of territory of its decision.
“If the decision of the state board of education is an approval of the proposed transfer of territory then the board of education of the district in which the territory is located shall, within thirty days after receiving the state board of education’s decision, adopt a resolution transferring the territory . . . .”
Early in 1972 some fifty-two residents (all of whom are white) of an area in Akron known as Sackett Hills, caused a petition to be filed with the State Board of Education, seeking the transfer of that area from the Akron City School District to the adjacent rural school district. The residents of Sackett *Hills, the area sought to be transferred, resided near the north corporation line of the City of Akron, but within its boundaries.
On May 23, 1972, a hearing was held in the offices of the Akron Board of Education on the petition to transfer the area. The hearing took place before a Referee appointed pursuant to the state Administrative Procedure Act, Chap. 119, Ohio Rev.Code, and Ohio Rev.Code § 3311.24, at which hearing the parties offered evidence and exhibits. The Referee, on June 15, 1972, made his report to the State Board, with findings of fact and recommendation concerning the approval of the transfer.
The Referee in his report to the State Board recommended to the State Board of Education that the Sackett Hills area be transferred to the adjoining Summit County Boston-Northampton School District. The State Board adopted the recommendation of the Referee and passed a resolution of approval as required under the statute to cause the transfer of the residents’ area to the adjoining school district.
The Akron Board was required by Ohio Rev.Code § 3311.24, within thirty days after receiving the State Board’s decision, to adopt a resolution transferring the territory. The Akron Board has failed and refused to comply with the statute. It did not avail itself of its remedy under Sections 2506.01 and 2506.04 Rev.Code of Ohio (1972 Supp.), but instead it filed the present suit in the District Court seeking to invalidate the transfer.
As before stated, the complaint charged that the transfer will alter the existing racial balances in Akron Public Schools, in violation of the Fourteenth Amendment to the Constitution. The complaint further alleged that only six *1295pupils from Saekett Hills were attending Akron’s public schools. Assuming, but not admitting, that the Fourteenth Amendment requires the balancing of races in the public school system, it would appear here that Akron’s loss of six pupils could well be characterized as de minimus.
It would further appear from the factual findings of the Referee included in the record that valid, nonracial grounds motivated his recommendation for the transfer of the territory. These grounds included consideration of the distance of the territory from the Akron public schools, the geography of the territory, the hills, and roads leading to such schools, and the danger to the pupils involved in the busing of the children long distances to the Akron schools. The findings also took into account the miserably poor busing service provided by the Akron School Board, as a consequence of which the six children arrived at the Akron schools late and left early, and the inordinate amount of time involved.
However, we need not decide the merits of the case, because it was disposed of on the issues of standing and jurisdiction.
The District Court was eminently correct in ruling that a body politic and corporate of a state is not a “person” within the meaning of, and subject to, the Civil Rights Act. Congress never intended to make state political subdivisions amenable to the Act. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) ; Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Johnson v. City of Cincinnati, 450 F.2d 796, 798 (6th Cir. 1971). The District Court therefore lacked jurisdiction to entertain the action under Section 1983.1
It is obvious that 42 U.S.C. § 1983 (1970), applies only to acts committed under color of state law by a person, and the State Board is not a person. The fact that Conrad C. Ott has joined as party plaintiff does not change the situation since the State Board is still not a person.
28 U.S.C. § 1343(3) (1962) does not help the plaintiffs because they are not asserting any violation of their own constitutional rights but are attempting to assert rights of some school children against other school children who will be affected thereby. As to the rights of the school children, the School Board has no standing to assert them.
We need not speculate whether plaintiffs might have brought suit under 28 U.S.C. § 1331 (1966). No such claim was made in the District Court, or here. To invoke Section 1331 plaintiffs would have been required to plead that the matter in controversy exceeded the amount or value of $10,000, exclusive of interest and costs, and arose under the Constitution of the United States. The Court found that the Akron Board had not established that it sustained any damage as a result of the transfer. The only aspect of the transfer which arguably involves money is the tax base which was transferred from Akron School District to Boston-Northampton School District. This loss, however, would be compensated by the fact that the Akron School Board no longer would be required to educate the children from the transferred area. The net result is a “wash” and there is no monetary amount in controversy. No doubt this is the real reason why counsel for plain*1296tiffs did not attempt to utilize Section 1331.
Furthermore, plaintiffs’ action does not arise under the Fourteenth Amendment to the Constitution. The District Court stated:
“While the Akron Board of Education is to be congratulated for its acceptance of its constitutional burden, it may not attempt to vindicate or preserve what are essentially the rights of the school children of Akron in this case.”
In Sierra Club v. Morton, 405 U.S. 727 at 733, 92 S.Ct. 1361 at 1365, 31 L.Ed.2d 636 (1972), the Supreme Court held that standing to obtain judicial review of agency action was conferred only upon those who could show “that the challenged action had caused them ‘injury in fact.’ ”
In United States v. Students, etc. (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), a divided Court, in following Sierra Club, held that plaintiffs had alleged such injury in fact to themselves, although the Chief Justice and two Associate Justices disagreed.
In our case the Akron School Board and Superintendent Conrad Ott have alleged no injury to themselves. Their claim of possible, theoretical injury to some school children is highly speculative, uncertain, and in my opinion, ill founded.
Nor should an Appellate Court reverse a District Court which has rendered a correct decision, because of the possibility that upon remand additional necessary parties can be added who may or may not be able to present a justicia-ble claim. It is not our function to restructure plaintiffs’ case.
If any of the school children have a claim for constitutional violation, the courts are wide open to receive such a claim brought by their parents or next friends. In our opinion the decision in the present case would not foreclose such action.
Neither the Akron School Board nor its Superintendent Ott have any standing to attack state legislation which they are charged by law with the duty to enforce. As well stated by Chief Judge Battisti in his opinion in the present case:
“Analogous situations do not support their claim. Municipal corporations have regularly been denied standing in the federal courts to attack state legislation as violative of the Federal Constitution. E. g., Pawhuska v. Pawhuska Oil Co., 250 US 394 [39 S.Ct. 526, 63 L.Ed. 1054] (1919); Trenton v. New Jersey, 262 US 182 [43 S.Ct. 534, 67 L.Ed. 937] (1923); Williams v. Mayor, 289 US 36 [53 S.Ct. 431, 77 L.Ed. 1015] (1933). While administrative or executive officers have standing to defend the constitutionality of legislation which he is charged with administering or enforcing, e. g„ Boynton v. Hutchinson Gas Co., 291 US 656 [54 S.Ct. 457, 78 L.Ed. 1048] (1934), a state official did not have the requisite interest necessary to vindicate the Federal Constitution so as to give him standing to attack the validity of a state statute which he was charged with enforcing. Smith v. Indiana, 191 US 138 [24 S.Ct. 51, 48 L.Ed. 125] (1903); Columbus & Greenville Ry. v. Miller, 283 US 96 [51 S.Ct. 392, 75 L.Ed. 861] (1931).”
For purposes of standing to assert claims of unconstitutional acts on the part of the State Board of Education, the Akron Board of Education is assuming two separate and distinct roles. The first role is that of a political entity asserting its own rights inherent in that entity; the second role is that of a group of public officials asserting the constitutional rights of others, namely, their constituents. In either role the Akron Board has no standing to assert that the transfer of the territory ordered by its political superior, the State Board of Education, was in contravention of the Uhited States Constitution.
It has been recognized throughout the history of our legal system that there is *1297substantial distinction between the constitutional rights of private and public entities. In Dartmouth College v. Woodard, 4 Wheat. 518 (1819), the Supreme Court discussed the constitutional rights of political subdivisions, vis-a-vis actions of their political superior, the state itself. The Court explained that since political subdivisions, such as cities, towns and municipalities, are but creatures of the state, they have no rights independent of those expressly provided by the state. Such political subdivisions, therefore, can assert no “constitutional rights” in opposition to acts of the state. 4 Wheat, at 661.
In the present case the Legislature of Ohio has granted a right of appeal to the Common Pleas Court; it has not granted to a local School Board the right to sue its superior. The School Board therefore had no power or authority to institute action in the Federal Court to vitiate the action of its superior.
The principle has been reaffirmed and expanded in a substantial number of cases. E. g., Williams v. Mayor of Baltimore, 289 U.S. 36, 53 S.Ct. 431, 77 L.Ed. 1015 (1933); Risty v. Chicago, R. I. & P. Ry., 270 U.S. 378, 390, 46 S.Ct. 236, 70 L.Ed. 641 (1926); Newark v. New Jersey, 262 U.S. 192, 43 S.Ct. 539, 67 L.Ed. 943 (1923); Trenton v. New Jersey, 262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937 (1923); Worcester v. Worcester Consol. St. Ry., 196 U.S. 539, 25 S.Ct. 327,49 L.Ed. 591 (1905).
In Trenton v. New Jersey, supra, the Court articulated the doctrine as follows:
“A municipality is merely a department of the state, and the state may withhold, grant or withdraw powers and privileges as it sees fit. However great or small its sphere of action, it remains the creature of the state exercising and holding powers and privileges subject to the sovereign will. See Barnes v. District of Columbia, 91 U.S. 540, 544, 545, 23 L.Ed. 440.
“The power of the State unrestrained by the contract clause of the Fourteenth Amendment, over the rights and property of cities held and used for ‘governmental purposes’ cannot be questioned.” (262 U.S. at 187-188, 43 S.Ct. at 537).
It might be argued, however, that the instant case is distinguishable from the above line of cases in that the suit of the plaintiffs herein is against the State Board of Education (itself a political subdivision), rather than against the State Legislature. Such a distinction is not legally relevant for purposes of standing.2 3
In New Orleans v. New Orleans Water Works Co., 142 U.S. 79, 12 S.Ct. 142, 35 L.Ed. 943 (1891), the City of New Orleans sued the local Water Works Company on a contract to supply water. The company defended on the ground that legislation had effectively given it the power to break the contract, and therefore it had no liability. The position of the city was that if the Legislature had given the company such power, it was an unconstitutional act (in violation of the contract clause) and therefore there was no defense to the company. The Court accepted the company’s defense, stating that, in effect, this was a suit by the city against the State Legislature on constitutional grounds, a suit that was not maintainable under traditional doctrine.
So too in the instant case, the suit, in effect, is against the State Legislature. The Legislature has expressly provided that the State Board of Education can transfer portions of school districts in the manner in which the transfer com*1298plained of, was accomplished. Ohio Rev.Code, § 3311.24.3
Since the State Board complied with the legislative prescription, its actions are in effect sanctioned by the State Legislature, and the Akron Board of Education (as a political entity of the State of Ohio) cannot void the State Board’s actions on constitutional grounds.
The second role in which the Akron Board could be said to be bringing this suit, as public officials asserting the constitutional rights of their constituent student body to attend nonsegregated schools, is equally invalid as a basis for standing.
In Smith v. Indiana, 191 U.S. 138, 24 S.Ct. 51, 48 L.Ed. 125 (1903), a public officer, a county auditor, attacked the constitutionality of a state mortgage exemption law. The Court held that the auditor, in his official capacity, could not attack the constitutionality of the exemption, stating:
“It is evident that the auditor had no personal interest in the litigation. He had certain duties as a public officer to perform. The performance of those duties was of no personal benefit to him. Their non-performance was equally so. He neither gained nor lost anything by invoking the advice of the supreme court as to the proper action he should take. He was testing the constitutionality of the law purely in the interest of third persons, viz., the taxpayers, and in this particular the case is analogous to that of Caf-frey v. Oklahoma, 177 U.S. 346, 20 S. Ct. 664, 44 L.Ed. 799. We think the interest of an appellant in this court should be a personal and not an official interest, and that the defendant, having sought the advice of the courts of his own State in his official' capacity, should be content to abide by their decision.” (Emphasis added.) (191 U.S. at 149, 24 S.Ct. at 52).
The holding in Smith was reaffirmed thereafter until it apparently became sufficiently well-established to remove further argument. See Stewart v. Kansas City, 239 U.S. 14, 36 S.Ct. 15, 60 L.Ed. 120 (1915); Marshall v. Dye, 231 U.S. 250, 34 S.Ct. 92, 58 L.Ed. 206 (1913); Braxton County Court v. West Virginia, 208 U.S. 192, 28 S.Ct. 275, 52 L.Ed. 450 (1908). We perceive no compelling logic or reason to resurrect this antiquated issue.
The Akron Board of Education, as a group of public officials, cannot assert the constitutional rights of some of its constituency in opposition to not only the State Board but also to others of its constituency.
In Triplett v. Tiemann, 302 F.Supp. 1239 (D.Neb.1969), a number of local school districts brought an action against the State Board of Education, alleging that actions of the State Board pursuant to statutory authorization were unconstitutional. The Three-Judge Court held that the school districts had no standing to assert constitutional claims against the State Board of Education. The Court stated:
“The plaintiff school districts are legally not subject to injury under the Equal Protection Clause. The Equal Protection Clause of the Fourteenth Amendment has no application to the acts of a State against its own political subdivisions. City of Trenton v. New Jersey, 262 U.S. 182-188, 43 S.Ct. 534, 67 L.Ed. 937 (1923); City of Newark v. New Jersey, 262 U.S. 192, 196, 43 S.Ct. 539, 67 L.Ed. 943 (1923); Williams v. Mayor & City Council of Baltimore, 289 U.S. 36, 40, 53 S.Ct. 431, 77 L.Ed. 1015 (1933). See also Annotation, 116 A.L.R. 1037.” (302 F.Supp. at 1242).
*1299With this conclusion I agree.
The District Court distinguished Brewer v. Hoxie School District, 238 F.2d 91 (8th Cir. 1956), Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and Bartels v. Iowa, 262 U.S. 404, 43 S.Ct. 628, 67 L.Ed. 1047 (1923), and other cases relied on by the plaintiffs. I agree with the District Court that these decisions are not apposite.
It was wholly unnecessary for a School Board to assume to act for aggrieved children, in the place of their parents or legal guardians, and to take legal action in the Federal Court which might seriously affect the substantial rights of other children, in this case the children living in Sackett Hills who are suffering from the poor busing policy of the Akron Board.
Nor is it understandable why the Akron Board invoked a dubious remedy in the Federal Courts when it had an unquestioned right to appeal to the Common Pleas Court from the State Board’s order of transfer and to assert there all of the claims which it is making in the Federal Court.
Controversies and disputes between state political agencies should properly be resolved in the state courts.
In recent years the Federal Courts have been inundated with actions brought under the Civil Rights laws. We think it is inadvisable for Federal Courts to get involved with disputes between state political agencies where plain and adequate remedies for their resolution are provided under state law. We followed this principle in Burks v. Perk, 470 F.2d 163 (6th Cir. 1972), cert, denied, 412 U.S. 905, 93 S.Ct. 2288, 36 L.Ed.2d 970 (1973). In that case we vacated an injunction issued by the District Court against the Mayor of Cleveland which enjoined the Mayor from conducting a hearing on charges for the removal of Civil Service Commissioners.
Three, opinions have been filed in this appeal. 'In the opinion filed by Judge Pratt, he concurs in part with Judge Edwards’ opinion, and dissents, in part. As I interpret the opinions, Judge Pratt agrees with me that the Akron Board is not a person within the meaning of 42 U.S.C. § 1983 and 28 U.S.C. § 1343 (1970). If this is correct then the State Board, like the Akron Board, would not be amenable to the Civil Rights Act. Judge Pratt would remand to allow the plaintiffs to amend. Judge Pratt agrees with Judge Edwards that the plaintiffs have standing to sue and that the District Court had jurisdiction. Judge Edwards would reverse.
I do not concur in either a reversal or a remand. If the case is remanded the District Court is obligated to follow, as it did, the three decisions of the Supreme Court hereinbefore cited, holding that a state political subdivision is not amenable to actions under Section 1983. The District Court is likewise bound to follow the decisions of the Supreme Court holding that one state political subdivision or agency does not have the power and authority to sue another state agency for alleged constitutional violations.
It is clear to me that the Akron Board and Conrad C. Ott have alleged no “injury in fact” to themselves. They have no standing, power or authority to sue for alleged constitutional violation of the rights of other persons.
The Referee who heard the evidence sustained the transfer of the small area which would afford needed relief to six children, on non-racial grounds'. It is ridiculous to contend that affording this relief affects the racial balance of the Akron School District to any material degree. Even if it did, it would not violate the constitutional rights of anyone.
As well stated by Chief Justice Burger in Swann v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1 at 24, 91 S.Ct. 1267 at 1280, 28 L.Ed.2d 554 (1971):
“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 *1300would be disapproved and we would be obliged to reverse.”
The amended complaint does not state any claim upon which relief can be granted. The decision of the District Court is correct.
I would affirm.
. Unlike City of Kenosha, supra, where the Attorney General was a party defendant, no officer of the State of Ohio is a party to this case.
Judge Edwards’ opinion recognized that the rule of these cases might be extended to school boards so as to deprive the Akron Board of Education of standing to sue. (Opin. pp. 9, 10). In my opinion it is not necessary to extend the rule, as there is no question but that state agencies are political subdivisions of the state.
The rule in these cases cannot be circumvented by suing the political subdivisions and joining with them as parties defendant their members and employees individually.
. It could be argued that this entire doctrine does not refer, technically,' to “standing”, but rather, it is concerned with a fundamental absence of power. However, we will accept Mr. Justice Frankfurter’s characterization of the doctrine as one involving principles of standing. See Baker v. Carr, 369 U.S. 186, 290, n. 23, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (dissenting opinion).
. This does not mean, of course, that the Akron Board was powerless to contest the actions of the State Board if it deviated from the legislative prescription. In fact, as previously pointed out, it had the right to a review of the decision of the State Board in the Common Pleas Court.