Tanya Mixon, Denise Thomas, and the National Association for the Advancement of Colored People v. The State of Ohio and Michael White, Mayor of the City of Cleveland

Plaintiffs in these two consolidated cases are voters and taxpayers of the Cleveland School District who seek to have Ohio Substitute House Bill 269 ("H.B. 269") declared unconstitutional1. H.B. 269changed the composition and number of the Cleveland School Board by allowing the Mayor of Cleveland to appoint a new school board for the Cleveland School District, consisting of Cleveland and four adjacent areas. Prior to this legislation, school district residents voted in a public election for school board members. Plaintiffs brought claims under (i) the Equal Protection Clause of the United States Constitution; (ii) 42 U.S.C. § 1983, alleging violations of the Equal Protection Clause of the United States Constitution, (iii) the Voting Rights Act, 42 U.S.C. § 1971, (iv) the Ohio Constitution and (v) Ohio common law. All parties filed motions for judgment on the pleadings. On March 6, 1998, the district court granted defendants' motions for judgment on the pleadings as to all causes of action and Plaintiffs timely filed their appeal to this court. On September 8, 1998, this court denied Plaintiffs' request for an emergency order enjoining the operation of H.B. 269. After careful consideration of the merits of this case, we agree with the district court's well-reasoned determinations. We hold, however, that the Eleventh Amendment bars the state law and federal Equal Protection claims against the State of Ohio and we DISMISS those claims. We AFFIRM the district court in all other respects.

The history behind this case is detailed and complex, stretching back nearly twenty years to a time when a federal district court in Ohio issued a desegregation order for the Cleveland public schools. On August 31, 1976, Federal District Court Chief Judge Battisti, after a lengthy bench trial, determined that the Ohio and Cleveland Boards of Education, the Cleveland School District, the Ohio Department of Education, and the State Superintendent had condoned and contributed to a policy of segregation in the Cleveland public schools. That same day, he permanently enjoined the board of education "from discriminating on the basis of race in the operation of the public schools of the City of Cleveland, and from creating, promoting, or maintaining racial segregation in any school or other facility in the Cleveland School System." Reed v. Rhodes, 422 F. Supp. 708, 797 (N.D. Ohio 1976).

On February 6, 1978, Judge Battisti issued a remedial order that required the defendants to implement a "comprehensive, systemwide plan of actual desegregation" and the Cleveland schools remained under the supervision of the district court. Reed v. Rhodes, 455 F. Supp. 546, 568 (N.D. Ohio 1978). From 1978 through the early 1990s, the parties continued to litigate the specifics of the remedial order and eventually entered into a settlement agreement in March, 1994. After a detailed hearing, the district court converted the settlement agreement into an enforceable Consent Decree. Reed v. Rhodes, 869 F. Supp. 1274 (N.D. Ohio 1994).

Despite the school district's successful compliance with the desegregation orders, however, political turmoil threatened the internal affairs of the Cleveland School District in the early 1990s. During this time period, the school district adopted a new educational program for the Cleveland schools called Vision 21, which became a focal point of the Consent Decree. Although Vision 21 appeared promising for revitalizing the school district, as evidenced by its incorporation into the Consent Decree, the program created turmoil within the Cleveland Board of Education and spawned internal feuding among the Mayor, the Superintendent of the Cleveland School District, and the local Board of Education, all of which led to the "total fiscal and administrative collapse" of the Cleveland School District. See Reed v.Rhodes, 934 F. Supp. 1533, 1538-39 (N.D. Ohio 1996).

As a result of this infighting, the district court, on March 3, 1995, directed the State Board of Education and the State Superintendent to "assume immediate supervision and operational, fiscal and personnel management of the District." See Reed v. Rhodes, 934 F. Supp. 1533, 1560 (App. A) (N.D. Ohio, 1996). On May 8, 1996, the district court modified the school desegregation Consent Decree and terminated judicial supervision of student-school assignments. See id. at 15582. This court recently affirmed that decision. Reed v. Rhodes, 179 F.3d 453, 473 (6th Cir. 1999). Finally, on July 17, 1998, the district court ordered the State Superintendent to return control of the Cleveland schools to the City of Cleveland as of September 9, 1998.

In the meantime, however, the Ohio Legislature drafted legislation that altered the composition and selection of the Cleveland School Board. On July 22, 1997, the Ohio Legislature passed H.B. 269, Ohio Rev. Code Ann. ("O.R.C.") §§ 3311.71-.77 (Anderson 1998), which created "municipal school districts."3 The legislation defines a municipal school district as "a school district that is or has ever been under a federal court order requiring supervision and operational, fiscal, and personnel management of the district by the state superintendent of public instruction." O.R.C. § 3311.71(A)(1). Upon the statute's enactment, the Cleveland School District fell within the statute's definition and became a municipal school district. Plaintiffs in this action challenge the constitutionality and legitimacy of H.B. 269.

To fully understand Plaintiffs' arguments, a brief overview of the statute itself is necessary. Once a federal court releases a targeted school district from its supervision order, a new nine-member school board assumes control of the district schools. O.R.C. § 3311.71(B). The mayor of the municipal corporation having the greatest portion of territory in the municipal school district appoints these nine members. O.R.C. § 3311.71(A)(2), (B). In this case, five areas compose the Cleveland City School District: The Villages of Bratenahl, Linndale, and Newburgh Heights, a portion of Garfield Heights, and the City of Cleveland. The Mayor of the City of Cleveland appoints the school board because the City of Cleveland has the greatest portion of territory within the municipal school district.

The mayor selects the new nine members from a slate of at least eighteen nominees selected by a nominating panel. At least three of the members of the nominating panel must reside in the municipal school district but not in the municipal corporation containing the greatest portion of the district's territory, i.e., from the four areas besides Cleveland, namely Bratenahl, Linndale, Newburgh Heights or Garfield Heights. The statute also requires that the nominating panel consist of the following persons: (i) Three parents or guardians of children attending the schools in the municipal school district who are appointed by the district's parent-teacher organization or a similar organization that the State Superintendent selects; (ii) Three persons appointed by the mayor (i.e., the Mayor of Cleveland); (iii) One person appointed by the president of the legislative body of the municipal corporation containing the greatest portion of the municipal school district's territory (i.e., Cleveland); (iv) One teacher appointed by the collective bargaining representative of the school district's teachers; (v) One principal appointed through a vote, conducted by the State Superintendent, of the schooldistrict's principals; and (vi) One representative of the business community appointed by an organized collective business entity selected by the mayor; (vii) One president of a public or private institution of higher education located within the municipal school district appointed by the State Superintendent. O.R.C. § 3311.71(C).

In addition, H.B. 269 provides specific limitations on the nominees. No nominee may hold elected office and all nominees must reside within the municipal school district. O.R.C. § 3311.71(D). At least one member of the selected school board must reside in the municipal school district but not in the municipal corporation containing the greatest portion of the district's territory, i.e., one member must reside in one of the other four areas besides Cleveland. O.R.C. §3311.71(D). Four of the nine members also must have displayed, prior to their appointment, significant expertise in either the education field, finance, or business management. O.R.C. § 3311.71(D). Additionally, any president of a state university or community college located within the municipal school district acts as a nonvoting ex officio member of the school board. O.R.C. § 3311.71(G). During the first thirty months of the new school board's tenure, the mayor also appoints a chief executive officer ("CEO") and fills any vacancies in that position. After the first thirty months have expired, the mayor appoints a CEO and fills any vacancies in that position only with the concurrence of the school board. O.R.C. § 3311.72 (B)(1)-(2).

After the school board has been in existence for four years, the statute mandates that a referendum election be held to determine whether the electorate of the municipal school district chooses to continue with an appointed school board. The election must occur in the first even-numbered year occurring at least four years after the school board has assumed control of the municipal school district. O.R.C. §3311.73(A). If the voters choose to reinstate an elected School Board, then the voters will elect a new seven-member board of education in the next regular election occurring in an odd-numbered year. In that election, voters will elect four members to four year terms and three members to two year terms. O.R.C. § 3311.73 (D). If, however, the voters choose to retain an appointed School Board, then the mayor will appoint a new board on the immediately following first day of July. O.R.C. § 3311.73 (C).

As soon as the State Superintendent returned control of the Cleveland public schools to the City of Cleveland on September 9, 1998, the Cleveland School District immediately fell within the definition of "municipal school district" under the provisions of H.B. 269. The Mayor of Cleveland appointed a new nine member school board, which currently runs the school district. The earliest referendum election for the Cleveland School District presumably would occur in November, 2002, a little more than four years after the initial appointment of the Cleveland School Board. If voters choose to return to an elected school board, then the voters would wait one year, until November, 2003, to vote for a new seven-member school board4. Plaintiffs contend that H.B. 269 violates both the state and federal constitutions, the Voting Rights Act, and Ohio common law. We address their arguments in turn.

The Eleventh Amendment of the United States Constitution5 expressly prohibitscitizens from suing the States in federal court subject to a few exceptions. See Alden v. Maine, --- U.S. ---, 119 S.Ct. 2240, 2266-68 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Both Alden and Seminole Tribe, two of the Supreme Court's more recent pronouncements on the Eleventh Amendment, hold that Plaintiffs may directly sue a State in federal court when a State consents to suit or the case concerns a statute passed pursuant to Section 5 of the Fourteenth Amendment, such as Title VII claims. Alden, 119 S.Ct. at 2267; Seminole Tribe, 517 U.S at 59, 116 S.Ct. at 1125; City of Boerne v. Flores, 521 U.S. 507, 516-36, 117 S.Ct. 2157, 2162-72, 138 L.Ed.2d 624 (1997); Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). Some of Plaintiffs' claims against the State of Ohio here are under the Ohio Constitution and Ohio common law. Although Ohio has statutorily waived its state sovereign immunity against certain state court actions by consenting to state suits in the Ohio Court of Claims, see O.R.C. § 2743.02(A) (Anderson Supp. 1998), a State may retain Eleventh Amendment immunity from suit in federal court even if it has waived its immunity and consented to be sued in its state courts. Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 465, 65 S.Ct. 347, 351, 89 L.Ed. 389 (1945). Ohio has not waived its sovereign immunity in federal court. Johns v. Supreme Court of Ohio, 753 F.2d 524, 527 (6th Cir. 1985); State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449, 460 (6th Cir. 1982).

Despite the fact that the Ohio Attorney General has not pressed the immunity question on appeal, we "may sua sponte raise the issue of lack of jurisdiction because of the applicability of the eleventh amendment." Ritter v. Univ. of Michigan, 851 F.2d 846, 851 (6th Cir. 1988); see also Ford Motor Co., 323 U.S. at 467, 65 S.Ct. at 352 (the Supreme Court will consider issues under the Eleventh Amendment "even though urged for the first time" on appeal to that Court); Wilson-Jones v. Caviness, 99 F.3d 203, 206 (6th Cir. 1996) ("[N]either the litigants' consent, nor oversight, nor convenience can justify a court's exercise of illegal power.")6. In the instant case, we find nothing in the record to indicate that Ohio consented to this suit7. Indeed, Ohio pled the Eleventh Amendment as an affirmative defense in its pleadings. Nor does the fact that Plaintiff seeks only injunctive relief allow the suit to proceed, for "the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment." Seminole Tribe, 517 U.S. at 58, 116 S.Ct. at 1124.

Additionally, Plaintiffs did not sue a state official and thus are not entitled to federal jurisdiction under the limited exception in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed.2d 714 (1908) (Plaintiffs may seek injunctive relief in federal court against a state officer for a violation of federal law). Further, Plaintiffs must allegea violation of a congressional statute enacted under § 5 to state a claim against a State under the Equal Protection Clause. See Bitzer, 427 U.S. at 455, 96 S.Ct. at 2671 ("Were it not for the fifth section of [the Fourteenth A]mendment, there might be room for argument that the first section is only declaratory of the moral duty of the State.") They have not done so here. Since the federal court had no jurisdiction under Seminole Tribe over the state law or the federal Equal Protection Clause claims, we accordingly dismiss those claims against the State of Ohio.

We turn next to the claim against the State of Ohio under the Voting Rights Act, which Congress enacted under Section 2 of the Fifteenth Amendment. See South Carolina v. Katzenbach, 383 U.S. 301, 325, 86 S.Ct. 803, 816-17, 15 L.Ed.2d 769 (1966). Although Alden and Seminole Tribe limit the situations in which a State may be sued in federal court, both cases recognize that Congress may abrogate a State's immunity when enacting "appropriate" legislation under the enforcement provision, § 5, of the Fourteenth Amendment. See Bitzer, 427 U.S. at 456, 96 S.Ct. at 2671 (Under § 5 of the Fourteenth Amendment "Congress is expressly granted authority to enforce 'by appropriate legislation' the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority."). "In order to determine whether Congress has abrogated the States' sovereign immunity, we ask two questions: first, whether Congress has 'unequivocally expresse[d] its intent to abrogate the immunity,' Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985); and second, whether Congress has acted 'pursuant to a valid exercise of power.'" Seminole Tribe, 517 U.S. at 55, 116 S.Ct. at 1123.

With respect to whether Congress intended to abrogate the States' sovereign immunity under the Voting Rights Act, we believe the language and purpose of the statute indicate an affirmative response. The language of Section 2 of the Act, 42 U.S.C. § 1973, specifically prohibits "any State or political subdivision" from discriminating against voters on the basis of race.

The second part of the inquiry requires us to determine whether Congress properly acted pursuant to a valid exercise of power when it enacted the Voting Rights Act. Section 2 of the Fifteenth Amendment mirrors Section 5 of the Fourteenth Amendment, both of which grant Congress the power to enforce the Amendments8. In City of Rome v. United States, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980), the Supreme Court, following a discussion of Congress' ability to abrogate a State's sovereign immunity under § 5 of the Fourteenth Amendment, addressed the Voting Rights Act:

We agree with the court below that Fitzpatrick stands for the proposition that principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by the power to enforce the Civil War Amendments "by appropriate legislation." Those Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty. Applying this principle, we hold that Congress had the authority to regulate state and local voting through the provisions of the Voting Rights Act.

City of Rome, 446 U.S. at 179-80, 100 S.Ct. at 1562-63. As this passage illustrates, Congress designed the Act "to implement the Fifteenth Amendment and, in some respects, the Fourteenth Amendment," intending to impose its authority on the States. See United States v. Bd. OfComm'rs of Sheffield, Ala., 435 U.S. 110, 126-27, 98 S.Ct. 965, 976-77, 55 L.Ed.2d 148 (1978).

More recently in Flores, the Supreme Court examined Congress' power under the Fourteenth Amendment's enforcement provision with regard to the Religious Freedom Restoration Act ("RFRA"). In holding that the RFRA was an impermissible exercise of congressional power, the Court contrasted the RFRA against the Voting Rights Act:

Legislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into "legislative spheres of autonomy previously reserved to the States." For example, the Court upheld a suspension of literacy tests and similar voting requirements under Congress' parallel power to enforce the provisions of the Fifteenth Amendment as a measure to combat racial discrimination in voting, despite the facial constitutionality of the tests . . . . We have also concluded that other measures protecting voting rights are within Congress' power to enforce the Fourteenth and Fifteenth Amendments, despite the burdens those measures place on the States.

Flores, 521 U.S. at 518, 117 S.Ct. at 2156 (citations omitted). As in City of Rome, the Court's decision aligns Congress' authority to abrogate a State's sovereign immunity under the Fourteenth Amendment to the similar provision in the Fifteenth Amendment. Considering that the two enforcement provisions are identical and both Amendments share the common goal of eradicating discrimination, we believe Congress may abrogate sovereign immunity by passing legislation under the Fifteenth Amendment. We can see no reason to treat the enforcement provision of the Fifteenth Amendment differently than the identical provision of the Fourteenth Amendment and the Supreme Court has not held to the contrary. Therefore, we have jurisdiction over Plaintiffs' claim under the Voting Rights Act against the State of Ohio.

Further, all of Plaintiffs' claims may proceed against the Mayor of Cleveland. While Plaintiffs cannot seek injunctive relief in federal court against a state officer for a violation of state law, Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), in some situations they may do so to obtain injunctive relief under federal law. See Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); cf. Seminole Tribe, 517 U.S. at 73-76, 116 S.Ct. at 1132-33 (limiting Young and holding that the Young doctrine may not be used to enforce the Indian Gaming Regulatory Act, 25 U.S.C. § 2710(d)(1)(C)). The Supreme Court, however, noted specifically that sovereign immunity "bars suits against States but not lesser entities" in federal and state court. Alden, 119 S.Ct. at 2267. Here, the Mayor of Cleveland is a municipal actor, not a state official, and does not fall under the State's broad umbrella of sovereign immunity unless Ohio considers the Mayor an "arm of the State." See Mt. Healthy Sch. Dist. City Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). Although the Mayor of Cleveland derives his authority from the State's enabling act, he does not perform a state function in this case. Instead, the Mayor of Cleveland represents a "municipal corporation," which the Ohio Legislature defined as a "political subdivision" expressly excluded from sovereign immunity. See O.R.C. § 2743.01. Consequently, the Mayor of Cleveland is not entitled to claim the State's sovereign immunity and we have jurisdiction over both the federal and state claims against him.

We review de novo a district court's grant of a motion for judgment onthe pleadings under Fed.R.Civ.Pro. 12(c) in the same manner as a motion to dismiss under Rule 12(b)(6). See Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998). We "construe the complaint in the light most favorable to the plaintiff[s] . . . and determine whether the plaintiff[s] undoubtedly can prove no set of facts in support of the claims that would entitle [them to] relief." Id. We accept all of Plaintiffs' factual allegations as true, United States v. Moriarty, 8 F.3d 329, 332 (6th Cir. 1993), but we need not accept as true legal conclusions or unwarranted factual inferences. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)9.

B. The Referendum Provision of the Ohio Constitution

Plaintiffs first allege that H.B. 269 violates the referendum proviso found in Article VI, Section 3 of the Ohio Constitution, which provides:

Provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds; provided, that each school district embraced wholly or in part within any city shall have the power by referendum vote to determine for itself the number of members and the organization of the district board of education, and provision shall be made by law for the exercise of this power by such school districts.

Plaintiffs claim that this provision subjects school boards to mandatory referenda and that H.B. 269 unconstitutionally delays such referenda for at least five years.

Although Plaintiffs' argument has some limited appeal, the relevant Ohio case law grants the state legislature discretion as to the timing of the referenda so long as the legislature acts reasonably. In State ex. rel. Ach v. Evans, 107 N.E. 537, 538 (Ohio 1914), the Ohio Supreme Court addressed the constitutionality of the Jung Small School Board Act ("Jung Act") under the same referendum provision at issue here. The Jung Act classified and organized city school districts and their respective school board members by using three general categories based on population. Id. at 537. The central legal challenge in Evans was that the Jung Act impermissibly infringed on the referendum provision of the Ohio Constitution. The relevant provision of the Jung Act provided:

Said commission shall prepare and submit to the electors at the next general school election, if one occur not less than one hundred and twenty days after the passage of said resolution, otherwise, at the second general school election, two or more plans for the organization of the board of education in such district . . . .

Id. at 538. The 120 day limitation period, coupled with the enactment date of the Jung Act, delayed the earliest public referendum for more than two years after the implementation of the new classification scheme and allegedly rendered the Jung Act unconstitutional.

The Ohio Supreme Court, however, found the Jung Act constitutional under the state constitution and held that the referendum provision did not require that voters approve any legislative change to the organization of the boards of education in Ohio cities before the legislature can enact and implement such changes. Id. Instead, Evans held that the legislature may make such changes without voter pre-approval so long as it provides the voters with an opportunity at a later date to vote on the changes. Id. ("It is obvious that this provision of the Constitution does not require that, before any change shall be made in the old board, a referendum shall be provided determining what change shall be made."); see also State ex rel. Core v. Green, 115 N.E.2d 157, 160 (Ohio 1953) (holding that the legislature may change the organization and control of the public schools without holding an immediate public referendum). Absent a showing of bad faith on the part of the legislature, the court determined that the Jung Bill did not conflict with the referendum provision of the Ohio Constitution because the Jung Bill provided for a referendum within a reasonable time. See Evans, 107 N.E. at 538 ("Statutes cannot be held unconstitutional upon the ground that somebody disagrees with the Legislature as to the time at which an act should take effect. The Legislature is presumed to have acted in good faith, and there is nothing in the record to overcome that presumption."). Evans thus implied that the legislature could wait two years before submitting the school district changes to a referendum. See id.

We read Evans as supporting Defendants' position. Despite Plaintiffs' argument that Evans established a two-year waiting period for a referendum as the maximum reasonable time period permissible, Evans never imposed or implied an exact limitation on the legislature with respect to the timing of referenda. Further, the four year period in H.B. 269 is reasonably related to the legitimate state purpose of improving the school board and providing the new appointees with some leeway to do their work. Without further guidance from the Ohio Supreme Court, we find Evans controlling and hold that H.B. 269 does not violate the referendum proviso of the Ohio Constitution.

As additional support for our holding, we note that the Ohio Legislature enacted on the same day both Article VI, Section 3 (the referendum provision) and Article XVIII, Section 5, which also contains a referendum provision that involves public utilities10. Unlike the constitutional provision at issue in this case, the utility referendum provision provides for voter approval before a challenged ordinance takes effect. Had the drafters of the Ohio Constitution wanted a similar express limitation in Article VI, Section 3, it is likely they would have included similar language in that provision. The fact that they did not evinces their intent that discretion regarding the timing of referenda under Article VI, Section 3 should rest with the legislature, which has determined that four years between referenda is acceptable. We do not believe Evans implies a contrary result. Moreover, despite Plaintiffs attempts to portray municipal school districts as special because they involve a four-year period before a referendum, Ohio statutes limit referenda to four yearsfor both city and municipal school districts. O.R.C. § 3313.04. Thus, Ohio legislators had a reasonable basis for choosing the four-year period as a reasonable time period for testing the new appointive school board system and we affirm the judgment of the district court on this issue.

Under the Equal Protection Clause of both the United States and Ohio Constitutions, courts apply strict scrutiny when the legislative classification at issue involves a fundamental right or a suspect class11. Although the right to vote, per se, is not a "constitutionally protected right," the Supreme Court has found, "implicit in our constitutional system, [a right] to participate in state elections on an equal basis with other qualified voters whenever the State has adopted an elective process for determining who will represent any segment of the State's population." San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 35 n. 78, 93 S.Ct. 1278, 1298 n. 78, 36 L.Ed.2d 16 (1973); see also Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 1000, 31 L.Ed.2d 274 (1972) ("[T]his Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction."); Desenco, Inc., 706 N.E.2d at 332 (the right to vote is a fundamental right).

If the challenged legislation grants the right to vote to some residents while denying the vote to others, then we must subject the legislation to strict scrutiny and determine whether the exclusions are necessary to promote a compelling state interest. Dunn, 405 U.S. at 337, 92 S.Ct. at 1000. If the legislation, however, does not infringe on the ri