LEXSEE 123 S. CT. 1389
CITY OF CUYAHOGA FALLS, OHIO, ET AL., PETITIONERS v. BUCKEYE
COMMUNITY HOPE FOUNDATION ET AL.
No. 01-1269
SUPREME COURT OF THE UNITED STATES
538 U.S. 188; 123 S. Ct. 1389; 155 L. Ed. 2d 349; 2003 U.S. LEXIS 2492; 71
U.S.L.W. 4213; 2003 Cal. Daily Op. Service 2598; 16 Fla. L. Weekly Fed. S 167
January 21, 2003, Argued
March 25, 2003, Decided
NOTICE:
The LEXIS pagination of this document is subject to officials exercised any power over the voters' decisionmaking, much less the kind of "coercive power," either overt or covert that would render the voters' change pending release of the final published version.
PRIOR HISTORY: ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT.
Buckeye Cmty. Hope Found. v. City of Cuyahoga
Falls, 263 F.3d 627, 2001 U.S. App. LEXIS 19391 (6th
Cir.) (6th Cir. Ohio, 2001) actions and statements, for all intents and purposes, state action. Moreover, the voters' sentiments could not be attributed to the state actors against which suit was brought. Indeed, in finding a genuine issue of material fact with regard to intent, the circuit court had relied almost entirely on independent statements by private citizens. Further, there was no evidence that the mayor had orchestrated the referendum. The developers thus failed to present an equal protection claim sufficient to
DISPOSITION: 263 F.3d 627 vacated in part, and remanded.
CASE SUMMARY:
PROCEDURAL POSTURE:
, reversed in part,
Respondent affordable housing developer, sought an injunction against petitioners city and its officials ordering the issue of building permits, as well as declaratory and monetary relief. The United States Court of Appeals for the Sixth
Circuit found genuine issues of material fact as to whether the city violated the Equal Protection Clause, the
Due Process Clause, and the Fair Housing Act, 42
U.S.C.S. § 3601 et seq. Certiorari was granted.
OVERVIEW: The city allowed a site plan approval ordinance to be submitted to the electors of the city through a referendum and, based on the results, rejected the developer's application for building permits. Inter alia, the court held that the developers failed to show city survive summary judgment. Additionally, the subjection of the site-plan ordinance to the referendum process, regardless of whether that ordinance reflected an administrative or legislative decision, was not per se arbitrary government conduct in violation of due process.
OUTCOME: The Court reversed the circuit court's judgment with regard to the developers' equal protection and substantive due process claims. Further, although the circuit court had held that the developer's disparate impact claim under the Fair Housing Act could proceed to trial, they subsequently abandoned the claim. The
Court therefore vacated the circuit court's disparate impact holding.
CORE TERMS: referendum, voter, ordinance, charter, site plan, equal protection, government conduct, engineer, summary judgment, referendum petition, disparate impact, low-income, drive, injunction, discriminatory intent, sufficient evidence, discriminatory, petitioning, submitting, site-plan, survive, invalid, genuine issue of material fact, arbitrary and capricious,

Page 2
538 U.S. 188, *; 123 S. Ct. 1389, **;
155 L. Ed. 2d 349, ***; 2003 U.S. LEXIS 2492 equal protection claim, facially neutral, housing complex, state action, decisionmakers', articulated
LexisNexis(R) Headnotes
Governments > Legislation > Initiative & Referendum
Process
[HN1] Cuyahoga Falls Ohio, City Charter, art. 9, § 2, app. 14, gives voters the power to approve or reject at the polls any ordinance or resolution passed by the city council within 30 days of the ordinance's passage.
Governments > Legislation > Initiative & Referendum
Process
[HN2] The Cuyahoga Falls, Ohio City Charter provides that an ordinance challenged by a petition shall not go into effect until approved by a majority of voters.
Cuyahoga Falls Ohio, City Charter, art. 9, § 2, app. 15.
Constitutional Law > Equal Protection > Scope of
Protection
[HN3] Proof of discriminatory intent or purpose is required to show a violation of the Equal Protection
Clause.
Constitutional Law > Equal Protection > Scope of
Protection
[HN4] Statements made by private individuals in the course of a citizen-driven petition drive, while sometimes relevant to equal protection analysis, do not, in and of themselves, constitute state action for the purposes of the Fourteenth Amendment.
Governments > Legislation > Initiative & Referendum
Process
[HN5] In assessing a referendum as a basic instrument of democratic government, provisions for referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice. And the United States
Supreme Court's well established First Amendment admonition that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable dovetails with the notion that all citizens, regardless of the content of their ideas, have the right to petition their government.
Governments > Legislation > Initiative & Referendum
Process
Administrative Law > Judicial Review > Standards of
Review > Arbitrary & Capricious Review
[HN6] Because all power stems from the people, a referendum cannot be characterized as a delegation of power, unlawful unless accompanied by "discernible standards." The people retain the power to govern through referendum with respect to any matter, legislative or administrative, within the realm of local affairs. However, the "substantive result" of a referendum may be invalid if it is "arbitrary and capricious."
DECISION:
Parties challenging actions of Ohio city and its officials with respect to referendum petition that had called for repeal of city housing ordinance held unable to maintain suit under Fourteenth Amendment's equal protection and due process clauses.
SUMMARY:
In April 1996, the city council of an Ohio city passed an ordinance authorizing a nonprofit corporation to construct a low-income housing complex. A group of citizens filed with the city a formal petition requesting that the ordinance be repealed or submitted to a popular vote. The city's charter provided that an ordinance challenged by a petition could not go into effect until approved by a majority of voters. The corporation and related parties requested building permits from the city in order to begin construction, but the city engineer rejected the request in June 1996 after being advised by the city law director that the permits could not be issued, as the ordinance had not taken effect due to the petition.
In July 1996, the corporation and related parties filed suit in the United States District Court for the
Northern District of Ohio against the city and several city officials. The plaintiffs--seeking declaratory and monetary relief and an injunction ordering the city to issue the building permits--alleged that the city and the officials had violated the Fair Housing Act (FHA) (42
USCS 3601 et seq.) and the equal protection and due process clauses of the Federal Constitution's Fourteenth
Amendment by (1) allowing the ordinance to be submitted to the city's electors through a referendum, and
(2) rejecting the application for building permits. In
November 1996, while the District Court case was pending, city voters passed the referendum, thus repealing the ordinance. However, in 1998, the Supreme
Court of Ohio declared the referendum invalid under
Ohio's constitution (82 Ohio St 3d 539, 697 NE2d 181).
Subsequently, the building permits were issued and construction commenced.
The District Court initially denied the city's motion for summary judgment on several of the plaintiffs' claims
(970 F Supp 1289).
However, after the referendum had been declared invalid--thus reducing the plaintiffs' action to a claim for damages for the delay in construction--the
District Court granted the summary-judgment motion on all counts (1999 US Dist LEXIS 23229).

Page 3
The United States Court of Appeals for the Sixth
Circuit, in reversing, concluded that (1) the plaintiffs had produced sufficient evidence to go to trial on the equal protection allegation that the city, by allowing the referendum petition to stay the implementation of the plan, had given effect to racial bias reflected in the public's opposition to the project; (2) even without proof of intentional discrimination, the plaintiffs stated a valid claim under the FHA on the theory that the city's actions had had a disparate impact based on race and family status; and (3) a genuine issue of material fact existed as to whether the city, by denying the plaintiffs the benefit of the housing plan, had engaged in arbitrary and irrational government conduct in violation of substantive due process (263 F3d 627).
On certiorari, the United States Supreme Court reversed in part, vacated in part, and remanded. In an opinion by O'Connor, J., expressing the unanimous view of the court, it was held that:
(1) The plaintiffs had failed to present sufficient evidence of an equal protection violation to survive a motion for summary judgment, for, among other matters,
(a) neither of the challenged official acts reflected the government intent that was required to support equal protection liability, and (b) there was no showing that the city officials had exercised any power over voters' decisionmaking during the referendum drive.
(2) There was no merit in the substantive due process claim, for under the circumstances presented, (a) the city engineer's refusal to issue the permits while the petition was pending in no sense constituted egregious or arbitrary government conduct; and (b) the city's subjection of the ordinance to the referendum process did not constitute per se arbitrary government conduct.
(3) Because the FHA claim had been abandoned by the plaintiffs, the Supreme Court would accordingly (a) vacate the FHA portion of the Court of Appeals' judgment; and (b) remand the case with instructions to dismiss, with prejudice, the FHA portion of the complaint.
Scalia, J., joined by Thomas, J., concurring, expressed the view that (1) even if there had been arbitrary government conduct in the case at hand, such conduct would not have established the claimed substantive due process violation, for (a) freedom from delay in receiving a building permit was not among the
"fundamental liberty interests" protected by the substantive component of the due process clause, and (b) the assertion that a referendum could not be used to decide whether the low-income housing would be built was merely a procedural due process claim; and (2) there had been no procedural defect in the case at hand.
538 U.S. 188, *; 123 S. Ct. 1389, **;
155 L. Ed. 2d 349, ***; 2003 U.S. LEXIS 2492
LAWYERS' EDITION HEADNOTES:
[***LEdHN1]
EVIDENCE § 904.3
-- sufficiency -- equal protection claim -- referendum drive
Headnote:[1A][1B][1C][1D][1E][1F][1G]
With respect to a referendum petition that called for the repeal of a city's housing ordinance which had authorized construction of a low-income housing complex, plaintiffs who claimed that the city and some city officials had violated the equal protection clause of the Federal
Constitution's Fourteenth Amendment--by (1) submitting the petition to voters, and (2) refusing to issue building permits to the plaintiffs while the petition was pending--failed to present sufficient evidence of an equal protection violation to survive a motion for summary judgment, where:
(1) The plaintiffs, seeking only damages for a delay in construction, claimed injury from the referendum-petitioning process and not from the referendum itself, which had never gone into effect.
(2) Neither of the challenged official acts reflected the intent required to support equal protection liability, as (a) the city, in submitting the referendum petition to the voters, had acted pursuant to the requirements of the city's charter, which set out a facially neutral petitioning procedure; (b) the city engineer, in refusing to issue building permits while the referendum was pending, had performed a nondiscretionary ministerial act; (c) there was no evidence suggesting that these official acts themselves had been motivated by racial animus; and (d) although evidence of allegedly discriminatory voter sentiment was presented, there was no evidence that the private motives that allegedly triggered the referendum drive could fairly be attributable to the state.
(3) Although it was also alleged that the city's mayor and other city officials had acted in concert with private citizens to prevent the housing complex from being built because of the race and family status of the complex's likely residents, there was no showing that (a) city officials had exercised any power over voters' decisionmaking during the drive, much less the kind of coercive power, either overt or covert, that would have rendered the voters' actions and statements, for all intents and purposes, state action; or (b) the mayor had orchestrated the referendum.
[***LEdHN2]
CONSTITUTIONAL LAW § 549
-- due process -- building permits -- referendum
Headnote:[2A][2B][2C][2D]

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538 U.S. 188, *; 123 S. Ct. 1389, **;
155 L. Ed. 2d 349, ***; 2003 U.S. LEXIS 2492
With respect to a referendum petition that called for the repeal of a city's housing ordinance which had authorized construction of a low-income housing complex, there was no merit in the claim that the city and various city officials had violated the substantive due process guarantee of the Federal Constitution's Fourteenth
Amendment by submitting the petition to voters and by refusing to issue building permits while the petition was pending, for:
(1) Regardless of whether the parties asserting the due process claim possessed a property interest in the building permits, the city engineer's refusal to issue the permits while the petition was pending in no sense constituted egregious or arbitrary government conduct.
In light of the city charter's provision that no ordinance challenged by a petition could go into effect until approved by a majority of those voting, the city law director's instruction to the engineer to refrain from issuing the permits represented a rational directive.
(2) Regardless of whether the site-plan ordinance reflected an administrative land-use determination or a legislative decision, the city's subjection of the ordinance to the referendum process did not constitute per se arbitrary government conduct in violation of due process.
[***LEdHN3]
APPEAL § 1704
-- remand for dismissal
Headnote:[3A][3B]
On certiorari to review a Federal Court of Appeals' judgment which held, among other matters, that a disparate-impact claim under the Fair Housing Act
(FHA) (42 USCS 3601 et seq.)--one of several claims asserted in a complaint against a city and some city officials with respect to a referendum petition that had called for the repeal of a city housing ordinance--could proceed to trial, the United States Supreme Court vacated the judgment in pertinent part and remanded the case with instructions to dismiss, with prejudice, the relevant portion of the complaint, where the FHA claim had been abandoned by the complaining parties.
[***LEdHN4]
CIVIL RIGHTS § 4.5
-- equal protection violation
Headnote:[4]
Proof of racially discriminatory intent or purpose is required in order to show a violation of the equal protection clause of the Federal Constitution's Fourteenth
Amendment.
[***LEdHN5]
CONSTITUTIONAL LAW § 484.1
-- equal protection -- petition drive
Headnote:[5]
Statements made by private individuals in the course of a citizen-driven petition drive--while sometimes relevant to an analysis as to whether there has been a violation of the equal protection clause of the Federal Constitution's
Fourteenth Amendment--do not, in and of themselves, constitute state action for the purposes of the Fourteenth
Amendment.
[***LEdHN6]
CONSTITUTIONAL LAW § 951
-- First Amendment -- referendum
Headnote:[6]
City officials advanced significant interests under the
Federal Constitution's First Amendment, where the officials--by adhering to facially neutral petitioning procedures set out in the city's charter--enabled public debate on a referendum to take place.
[***LEdHN7]
CONSTITUTIONAL LAW § 934
-- offensive expression
Headnote:[7]
Under the Federal Constitution's First Amendment, the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
[***LEdHN8]
CONSTITUTIONAL LAW § 951
-- free speech -- petition
Headnote:[8]
Under the free speech guarantee of the Federal
Constitution's First Amendment, all citizens--regardless of the content of their ideas--have the right to petition the government.
[***LEdHN9]
EVIDENCE § 783
-- relevance -- discriminatory intent
Headnote:[9]
Statements made by decisionmakers or referendum sponsors during deliberation over a referendum may possibly constitute relevant evidence of discriminatory intent in a challenge to an ultimately enacted initiative.
[***LEdHN10]
CONSTITUTIONAL LAW § 514
INITIATIVE REFERENDUM RECALL § 1

Page 5
538 U.S. 188, *; 123 S. Ct. 1389, **;
155 L. Ed. 2d 349, ***; 2003 U.S. LEXIS 2492
-- delegation of power -- due process
Headnote:[10]
Because all power stems from the people, a referendum cannot be characterized as a delegation of power that is unlawful unless accompanied by discernible standards.
Rather, the people retain the power to govern through referendum with respect to any matter, whether legislative or administrative, that is within the realm of local affairs. However, the substantive result of a referendum may be invalid, under the due process clause of the Federal Constitution's Fourteenth Amendment, if the result is arbitrary and capricious.
SYLLABUS: After the City Council of Cuyahoga Falls,
Ohio (hereinafter City), passed a site-plan ordinance authorizing construction of a low-income housing complex by respondents -- a nonprofit corporation dedicated to developing affordable housing and related parties -- a group of citizens filed a formal petition requesting that the ordinance be repealed or submitted to a popular vote. Pursuant to the City's charter, the referendum petition stayed the site plan's implementation until its approval by the voters. An Ohio court denied respondents an injunction against the petition, and the city engineer, on advice from the city law director, denied their request for building permits. The voters eventually passed the referendum, thus repealing the ordinance. Subsequently, the Ohio Supreme Court declared the referendum invalid under Ohio's
Constitution, the City issued the building permits, and construction commenced. While the state litigation was still pending, respondents filed a federal suit against the
City and its officials, seeking an injunction ordering the
City to issue the building permits, as well as declaratory and monetary relief. They claimed that by submitting the site plan to voters, the City and its officials violated the
Equal Protection and Due Process Clauses of the
Fourteenth Amendment , as well as the Fair Housing Act .
The District Court, inter alia, denied the City's summary judgment motion. After the Ohio Supreme Court invalidated the referendum, thus reducing the federal action to a claim for damages for the construction delay, the District Court granted the City and its officials summary judgment. In reversing, the Sixth Circuit found that respondents had produced sufficient evidence to go to trial on the allegation that the City, by allowing the petition to stay the site plan's implementation, gave effect to the racial bias reflected in the public's opposition to the project; that respondents had stated a valid Fair
Housing Act claim because the City's actions had a disparate impact based on race and family status; and that a genuine issue of material fact existed as to whether the City had engaged in arbitrary and irrational government conduct in violation of substantive due process.
Held:
1. Respondents have not presented an equal protection claim that can survive summary judgment. Proof of racially discriminatory intent is required to show an
Equal Protection Clause violation. Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252,
265, 50 L. Ed. 2d 450, 97 S. Ct. 555 . Because respondents claim injury from the referendum petitioning process, not from the referendum itself -- which never went into effect -- cases in which this Court has subjected enacted, discretionary measures to equal protection scrutiny and treated decisionmakers' statements as evidence of intent, see e.g., Cleburne v.
Cleburne Living Center, Inc., 473 U.S. 432, 448, 87 L.
Ed. 2d 313, 105 S. Ct. 3249 , are inapposite. Neither of the official acts respondents challenge reflects the intent required to support equal protection liability. In submitting the referendum petition to the public, the City acted pursuant to the requirement of its charter, which sets out a facially neutral petitioning procedure, and the city engineer, in refusing to issue the permits, performed a nondiscretionary, ministerial act consistent with the
City Charter. Respondents point to no evidence suggesting that these acts were themselves motivated by racial animus. While they and the Sixth Circuit cite evidence of allegedly discriminatory voter sentiment, statements made by private individuals during a citizen-driven petition drive do not, in and of themselves, constitute state action for Fourteenth Amendment purposes. And respondents did not offer evidence that the private motives behind the referendum drive are fairly attributable to the state. See Blum v. Yaretsky,
457 U.S. 991, 1004, 73 L. Ed. 2d 534, 102 S. Ct. 2777 . In fact, by adhering to charter procedures, city officials enabled public debate on the referendum to take place, thus advancing significant First Amendment interests.
Respondents' alternate theory -- that city officials acted in concert with private citizens to prevent the complex from being built because of the race and family status of the likely residents -- was not addressed below and apparently was disavowed by respondents at oral argument. Moreover, respondents never articulated a cognizable legal claim on such grounds. Pp. 5-8.
2. Subjecting the ordinance to the City's referendum process did not constitute arbitrary government conduct in violation of substantive due process. Both of respondents' due process claims lack merit. First, the city engineer's refusal to issue the building permits while the petition was pending in no sense constituted egregious or arbitrary government conduct denying respondents the

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538 U.S. 188, *; 123 S. Ct. 1389, **;
155 L. Ed. 2d 349, ***; 2003 U.S. LEXIS 2492 benefit of the site plan. In light of the charter's provision that no challenged ordinance can go into effect until approved by the voters, the law director's instruction to the engineer represented an eminently rational directive.
Indeed, the site plan, by law, could not be implemented until the voters passed on the referendum. Respondents' second theory -- that the city's submission of an administrative land-use determination to the charter's referendum procedures constituted per se arbitrary conduct -- has no basis in this Court's precedent. The people retain the power to govern through referendum with respect to any matter, legislative or administrative, within the realm of local affairs. Eastlake v. Forest City
Enterprises, Inc., 426 U.S. 668, 674, n. 9, 49 L. Ed. 2d
132, 96 S. Ct. 2358 . Though a referendum's substantive result may be invalid if it is arbitrary or capricious, respondents do not challenge the referendum itself. Pp.
8-10.
3. Because respondents have abandoned their Fair
Housing Act disparate impact claim, the Sixth Circuit's disparate impact holding is vacated and the case is remanded with instructions to dismiss the relevant portion of the complaint. P. 10.
263 F.3d 627 , reversed in part, vacated in part, and remanded.
COUNSEL: Glen D. Nager argued the cause for petitioners.
David B. Salmons argued the cause for the United States, as amicus curiae, by special leave of court.
Edward G. Kramer argued the cause for respondents.
JUDGES: O'CONNOR, J., delivered the opinion for a unanimous Court. SCALIA, J., filed a concurring opinion, in which THOMAS, J., joined.
OPINIONBY: O'CONNOR
OPINION:
[*191] [**1392] [***356] JUSTICE
O'CONNOR delivered the opinion of the Court.
[***LEdHR1A] [1A] [***LEdHR2A] [2A]
[***LEdHR3A] [3A]In 1995, the city of Cuyahoga
Falls, Ohio (hereinafter City), submitted to voters a facially neutral referendum petition that called for the repeal of a municipal housing ordinance authorizing construction of a low-income housing complex. The
United States Court of Appeals for the Sixth Circuit found genuine issues of material fact with regard to whether the City violated the Equal Protection Clause , the Due Process Clause , and the Fair Housing Act, 82
Stat. 81, as amended, 42 U.S.C. § 3601 et seq.
, by placing the petition on the ballot. We granted certiorari to determine whether the Sixth Circuit erred in ruling that respondents' suit against the City could proceed to trial.
I
A
In June 1995, respondents Buckeye Community
Hope Foundation, a nonprofit corporation dedicated to developing affordable housing through the use of low-income tax credits, and others (hereinafter Buckeye or respondents), purchased land zoned for apartments in
Cuyahoga Falls, Ohio. In February 1996, Buckeye submitted a site plan for Pleasant Meadows, a multifamily, low-income housing complex, to the city planning commission. Residents of Cuyahoga Falls immediately expressed opposition to the proposal. See
Buckeye Cmty. Hope Found. v. City of Cuyahoga Falls,
263 F.3d 627, 630 (CA6 2001) . After respondents agreed to various conditions, including that it build an earthen wall surrounded by a fence on one side of the complex, the commission unanimously approved the site plan and submitted it to the city council for final authorization.
As the final approval process unfolded, public opposition to the plan resurfaced and eventually coalesced into a referendum [*192] petition drive. See
[HN1] Cuyahoga Falls City Charter, Art. 9, § 2
(hereinafter City Charter), App. 14 (giving voters "the power to approve or reject at the polls any ordinance or resolution passed by the Council" within 30 days of the ordinance's passage). At city council meetings and independent gatherings, some of which the mayor attended to express his personal opposition to the site plan, citizens of Cuyahoga Falls voiced various concerns: that the development would cause crime and drug activity to escalate, that families with children would move in, and that the complex would attract a population similar to the one on Prange Drive, the City's only African-American neighborhood. See, e.g., 263
F.3d at 636-637 ; App. 98, 139, [**1393] 191; Tr.
182-185, 270, 316. Nevertheless, because the plan met
[***357] all municipal zoning requirements, the city council approved the project on April 1, 1996, through
City Ordinance No. 48-1996.
On April 29, a group of citizens filed a formal petition with the City requesting that the ordinance be repealed or submitted to a popular vote. Pursuant
[HN2] to the City Charter, which provides that an ordinance challenged by a petition "shall [not] go into effect until approved by a majority" of voters, the filing stayed the implementation of the site plan. Art. 9, § 2,
App. 15. On April 30, respondents sought an injunction

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538 U.S. 188, *; 123 S. Ct. 1389, **;
155 L. Ed. 2d 349, ***; 2003 U.S. LEXIS 2492 against the petition in state court, arguing that the Ohio
Constitution does not authorize popular referendums on administrative matters. On May 31, the Court of
Common Pleas denied the injunction. Buckeye
Community Hope Foundation v. Cuyahoga Falls , Civ.
No. 96-05-1701, (Summit County), App. to Pet. for Cert.
255a. A month later, respondents nonetheless requested building permits from the City in order to begin construction. On June 26, the city engineer rejected the request after being advised by the city law director that the permits "could not be issued because the site plan ordinance 'does not take effect' due to the petitions."
263 F.3d at 633 .
In November 1996, the voters of Cuyahoga Falls passed the referendum, thus repealing Ordinance No.
48-1996. In [*193] a joint stipulation, however, the parties agreed that the results of the election would not be certified until the litigation over the referendum was resolved. See Stipulation and Jointly Agreed upon
Preliminary Injunction Order in No. 5:96 CV 1458 (ND
Ohio, Nov. 25, 1996). In July 1998, the Ohio Supreme
Court, having initially concluded that the referendum was proper, reversed itself and declared the referendum unconstitutional. Buckeye Community Hope Foundation v. Cuyahoga Falls, 82 Ohio St. 3d 539, 697 N.E.2d 181
(holding that the Ohio State Constitution authorizes referendums only in relation to legislative acts, not administrative acts, such as the site-plan ordinance). The
City subsequently issued the building permits, and
Buckeye commenced construction of Pleasant Meadows.
B
In July 1996, with the state-court litigation still pending, respondents filed suit in federal court against the City and several city officials, seeking an injunction ordering the City to issue the building permits, as well as declaratory and monetary relief. Buckeye alleged that "in allowing a site plan approval ordinance to be submitted to the electors of Cuyahoga Falls through a referendum and in rejecting [its] application for building permits," the City and its officials violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment , as well as the Fair Housing Act, 42 U.S.C. § 3601 .
Complaint in No. 5:96 CV 1458 P1 (ND Ohio, July 5,
1996) (hereinafter Complaint). In June 1997, the District
Court dismissed the case against the mayor in his individual capacity but denied the City's motion for summary judgment on the equal protection and due process claims, concluding that genuine issues of material fact existed as to both claims. Buckeye
Community Hope Found. v. City of Cuyahoga Falls, 970
F. Supp. 1289, 1308 (ND Ohio 1997) . After the Ohio
Supreme Court declared the referendum invalid in 1998, thus reducing respondents' action to a [***358] claim for damages for the delay in construction, the City and its officials again moved for summary judgment. On
November [*194] 19, 1999, the District Court granted the motion on all counts. Civ. No. 5:96 CV 1458, App. to
Pet. for Cert. 35a.
The Court of Appeals for the Sixth Circuit reversed. As to respondents' equal protection claim, the court concluded that they had produced sufficient evidence to go to trial on the allegation that the City, by allowing the referendum petition to stay the implementation of the site plan, gave effect to the racial bias reflected in the public's opposition to the project.
See [**1394] 263 F.3d at 639 . The court then held that even if respondents failed to prove intentional discrimination, they stated a valid claim under the Fair
Housing Act on the theory that the City's actions had a disparate impact based on race and family status. See
Id., at 640 . Finally, the court concluded that a genuine issue of material fact existed as to whether the City, by denying respondents the benefit of the lawfully approved site plan, engaged in arbitrary and irrational government conduct in violation of substantive due process. Id., at
644 . We granted certiorari, 536 U.S. , 536 U.S. 938,
153 L. Ed. 2d 802, 122 S. Ct. 2618 (2002) , and now reverse the constitutional holdings and vacate the Fair
Housing Act holding.
II
[***LEdHR1B] [1B]Respondents allege that by submitting the petition to the voters and refusing to issue building permits while the petition was pending, the City and its officials violated the Equal Protection Clause .
See Complaint P41. Petitioners claim that the Sixth
Circuit went astray by ascribing the motivations of a handful of citizens supportive of the referendum to the
City. We agree with petitioners that respondents have failed to present sufficient evidence of an equal protection violation to survive summary judgment.
[***LEdHR1C] [1C]
[***LEdHR4] [4] We have made clear that [HN3]
"proof of racially discriminatory intent or purpose is required" to show a violation of the Equal Protection
Clause . Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252, 265, 50 L. Ed. 2d 450,
97 S. Ct. 555 (1977) (citing Washington v. Davis, 426
U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976)) . In deciding [*195] the equal protection question, the
Sixth Circuit erred in relying on cases in which we have subjected enacted, discretionary measures to equal protection scrutiny and treated decisionmakers' statements as evidence of such intent. See 263 F.3d, at
634-635 (citing Cleburne v. Cleburne Living Center,
Inc., 473 U.S. 432, 448, 87 L. Ed. 2d 313, 105 S. Ct.

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538 U.S. 188, *; 123 S. Ct. 1389, **;
155 L. Ed. 2d 349, ***; 2003 U.S. LEXIS 2492
3249 (1985) ; Arlington Heights v. Metropolitan
Housing Development Corp., supra, at 268 ; and Hunter v. Erickson, 393 U.S. 385, 392, 21 L. Ed. 2d 616, 89 S.
Ct. 557 (1969)) . Because respondents claim injury from the referendum petitioning process and not from the referendum itself -- which never went into effect -- these cases are inapposite. Ultimately, neither of the official acts respondents challenge reflects the intent required to support equal protection liability.
[***LEdHR1D] [1D]First, in submitting the referendum petition to the voters, the City acted pursuant to the requirements of its charter, which sets out a facially neutral petitioning procedure. See Art. 9, § 2.
By placing the referendum on the ballot, the City did not enact the referendum and [***359] therefore cannot be said to have given effect to voters' allegedly discriminatory motives for supporting the petition.
Similarly, the city engineer, in refusing to issue the building permits while the referendum was still pending, performed a nondiscretionary, ministerial act. He acted in response to the city law director's instruction that the building permits "could not . . . issue" because the City
Charter prohibited a challenged site-plan ordinance from going into effect until "approved by a majority of those voting thereon," ibid.
See 263 F.3d at 633 . Respondents point to no evidence suggesting that these official acts were themselves motivated by racial animus.
Respondents do not, for example, offer evidence that the
City followed the obligations set forth in its charter because of the referendum's discriminatory purpose, or that city officials would have selectively refused to follow standard charter procedures in a different case.
[***LEdHR1E] [1E] [***LEdHR5] [5]Instead, to establish discriminatory intent, respondents and the Sixth
Circuit both rely heavily on evidence of allegedly
[*196] discriminatory voter sentiment. See id., at
635-637 . But [HN4] statements made by private individuals in the course of a citizen- [**1395] driven petition drive, while sometimes relevant to equal protection analysis, see supra, at 5, do not, in and of themselves, constitute state action for the purposes of the
Fourteenth Amendment.
Cf.
Blum v. Yaretsky, 457 U.S.
991, 1002-1003, 73 L. Ed. 2d 534, 102 S. Ct. 2777
(1982) ("'The principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States'") (quoting
Shelley v. Kraemer, 334 U.S. 1, 13, 92 L. Ed. 1161, 68 S.
Ct. 836 (1948)) . Moreover, respondents put forth no evidence that the "private motives [that] triggered" the referendum drive "can fairly be attributable to the State."
Blum v. Yaretsky, supra, at 1004.
[***LEdHR6] [6] [***LEdHR7] [7] [***LEdHR8]
[8] [***LEdHR9] [9]In fact, by adhering to charter procedures, city officials enabled public debate on the referendum to take place, thus advancing significant
First Amendment interests. [HN5] In assessing the referendum as a "basic instrument of democratic government," Eastlake v. Forest City Enterprises, Inc.,
426 U.S. 668, 679, 49 L. Ed. 2d 132, 96 S. Ct. 2358
(1976) , we have observed that "provisions for referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice," James v. Valtierra,
402 U.S. 137, 141, 28 L. Ed. 2d 678, 91 S. Ct. 1331
(1971) . And our well established First Amendment admonition that "government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable," Texas v. Johnson,
491 U.S. 397, 414, 105 L. Ed. 2d 342, 109 S. Ct. 2533
(1989) , dovetails with the notion that all citizens, regardless of the content of their ideas, have the right to petition their government. Cf. Meyer v. Grant, 486 U.S.
414, 421-422, 100 L. Ed. 2d 425, 108 S. Ct. 1886 (1988)
(describing the circulation of an initiative petition as
"'core political speech'"); Police Dept. of Chicago v.
Mosley, 408 U.S. 92, 96, 33 L. Ed. 2d 212, 92 S. Ct. 2286
(1972) ("Government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less [***360] favored or more controversial views"). Again, statements made by decisionmakers or referendum sponsors during deliberation over a [*197] referendum may constitute relevant evidence of discriminatory intent in a challenge to an ultimately enacted initiative. See, e.g.,
Washington v. Seattle School Dist. No. 1, 458 U.S. 457,
471, 73 L. Ed. 2d 896, 102 S. Ct. 3187 (1982)
(considering statements of initiative sponsors in subjecting enacted referendum to equal protection scrutiny); Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S., at 268 . But respondents do not challenge an enacted referendum.
[***LEdHR1F] [1F]In their brief to this Court, respondents offer an alternate theory of equal protection liability: that city officials, including the mayor, acted in concert with private citizens to prevent Pleasant
Meadows from being built because of the race and family status of its likely residents. See Brief for
Respondents 12-26; Tr. of Oral Arg. 33-34, 36-40, 43.
Respondents allege, among other things, that the city law director prompted disgruntled voters to file the petition, that the city council intentionally delayed its deliberations to thwart the development, and that the mayor stoked the public opposition. See Brief for
Respondents 17. Not only did the courts below not directly address this theory of liability, but respondents also appear to have disavowed this claim at oral

Page 9
538 U.S. 188, *; 123 S. Ct. 1389, **;
155 L. Ed. 2d 349, ***; 2003 U.S. LEXIS 2492 argument, focusing instead on the denial of the permits.
See Tr. of Oral Arg. 37-38.
What is more, respondents never articulated a cognizable legal claim on these grounds. Respondents fail to show that city officials exercised any power over voters' decisionmaking during the drive, much less the kind of "coercive power" either "overt or covert" that would render the voters' actions and statements, for all intents and purposes, state action. Blum v. Yaretsky, 457
U.S., at 1004 . Nor, as noted above, do respondents show that the voters' sentiments can be attrib [**1396] uted in any way to the state actors against which it has brought suit. See ibid.
Indeed, in finding a genuine issue of material fact with regard to intent, the Sixth Circuit relied almost entirely on apparently independent statements by private citizens. See 263 F.3d at [*198]
635-637 . And in dismissing the claim against the mayor in his individual capacity, the District Court found no evidence that he orchestrated the referendum. See 970
F. Supp. , at 1321 . Respondents thus fail to present an equal protection claim sufficient to survive summary judgment.
III
[***LEdHR2B] [2B]In evaluating respondents' substantive due process claim, the Sixth Circuit found, as a threshold matter, that respondents had a legitimate claim of entitlement to the building permits, and therefore a property interest in those permits, in light of the city council's approval of the site plan. See 263 F.3d at 642 . The court then held that respondents had presented sufficient evidence to survive summary judgment on their claim that the City engaged in arbitrary conduct by denying respondents the benefit of the plan. Id., at 644 . Both in their complaint and before this Court, respondents contend that the City violated substantive due process, not only for the reason articulated by the Sixth Circuit, but also on the grounds that the [***361] City's submission of an administrative land-use determination to the charter's referendum procedures constituted per se arbitrary conduct. See Complaint PP39, 43; Brief for Respondents
32-49. We find no merit in either claim.
We need not decide whether respondents possessed a property interest in the building permits, because the city engineer's refusal to issue the permits while the petition was pending in no sense constituted egregious or arbitrary government conduct. See County of
Sacramento v. Lewis, 523 U.S. 833, 846, 140 L. Ed. 2d
1043, 118 S. Ct. 1708 (1998) (noting that in our evaluations of "abusive executive action," we have held that "only the most egregious official conduct can be said to be 'arbitrary in the constitutional sense'"). In light of the charter's provision that "no such ordinance
[challenged by a petition] shall go into effect until approved by a majority of those voting [*199] thereon," Art. 9, § 2, App. 15, the law director's instruction to the engineer to not issue the permits represented an eminently rational directive. Indeed, the site plan, by law, could not be implemented until the voters passed on the referendum.
[***LEdHR2C] [2C] [***LEdHR10]
[10]Respondents' second theory of liability has no basis in our precedent. As a matter of federal constitutional law, we have rejected the distinction that respondents ask us to draw, and that the Ohio Supreme Court drew as a matter of state law, between legislative and administrative referendums. In Eastlake v. Forest City
Enterprises, Inc., 426 U.S., at 672, 675 , we made clear that [HN6] because all power stems from the people,
"[a] referendum cannot . . . be characterized as a delegation of power," unlawful unless accompanied by
"discernible standards." The people retain the power to govern through referendum "'with respect to any matter, legislative or administrative, within the realm of local affairs.'" Id., at 674, n. 9 . Cf. James v. Valtierra, 402
U.S., at 137 . Though the "substantive result" of a referendum may be invalid if it is "arbitrary and capricious," Eastlake v. Forest City Enterprises, supra, at 676 , respondents do not challenge the referendum itself. The subjection of the site-plan ordinance to the
City's referendum process, regardless of whether that ordinance reflected an administrative or legislative decision, did not constitute per se arbitrary government conduct in violation of due process.
IV
[***LEdHR1G] [1G] [***LEdHR2D] [2D]
[***LEdHR3B] [3B]For the reasons detailed above, we reverse the Sixth Circuit's judgment with [**1397] regard to respondents' equal protection and substantive due process claims. The Sixth Circuit also held that respondents' disparate impact claim under the Fair
Housing Act could proceed to trial, 263 F.3d at 641 , but respondents have now abandoned the claim. See Brief for Respondents 31. We therefore vacate the Sixth
Circuit's [*200] disparate impact holding and remand with instructions to dismiss, with prejudice, the relevant portion of the complaint. See Deakins v. Monaghan,
484 U.S. 193, 200, 98 L. Ed. 2d 529, 108 S. Ct. 523
(1988) .
The judgment of the United States Court of
Appeals for the Sixth Circuit is, accordingly, reversed in part, and vacated in part, and the case is remanded
[***362] for further proceedings consistent with this opinion.
It is so ordered.

Page 10
538 U.S. 188, *; 123 S. Ct. 1389, **;
155 L. Ed. 2d 349, ***; 2003 U.S. LEXIS 2492
CONCURBY: SCALIA
CONCUR:
JUSTICE SCALIA, with whom JUSTICE
THOMAS joins, concurring.
I join the Court's opinion, including Part III, which concludes that respondents' assertions of arbitrary government conduct must be rejected. I write separately to observe that, even if there had been arbitrary government conduct, that would not have established the substantive-due-process violation that respondents claim.
It would be absurd to think that all "arbitrary and capricious" government action violates substantive due process -- even, for example, the arbitrary and capricious cancellation of a public employee's parking privileges.
The judicially created substantive component of the Due
Process Clause protects, we have said, certain
"fundamental liberty interests" from deprivation by the government, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v.
Glucksberg, 521 U.S. 702, 721, 138 L. Ed. 2d 772, 117 S.
Ct. 2258, 117 S. Ct. 2302 (1997) . Freedom from delay in receiving a building permit is not among these
"fundamental liberty interests." To the contrary, the
Takings Clause allows government confiscation of private property so long as it is taken for a public use and just compensation is paid; mere regulation of land use need not be "narrowly tailored" to effectuate a
"compelling state interest." Those who claim "arbitrary" deprivations of nonfundamental liberty interests must look to the Equal Protection Clause , and Graham v.
Connor, 490 U.S. 386, 395, 104 L. Ed. 2d 443, 109 S. Ct.
1865 (1989) , precludes the use of "'substantive due process'" [*201] analysis when a more specific constitutional provision governs.
As for respondents' assertion that referendums may not be used to decide whether low-income housing may be built on their land: that is not a substantive-due-process claim, but rather a challenge to the procedures by which respondents were deprived of their alleged liberty interest in building on their land.
There is nothing procedurally defective about conditioning the right to build low-income housing on the outcome of a popular referendum, cf. James v.
Valtierra, 402 U.S. 137, 28 L. Ed. 2d 678, 91 S. Ct. 1331
(1971) , and the delay in issuing the permit was prescribed by a duly enacted provision of the Cuyahoga
Falls City Charter (Art. 9, § 2), which surely constitutes
"due process of law," see Connecticut Dept. of Public
Safety v. Doe , ante , p. (SCALIA, J., concurring).
With these observations, I join the Court's opinion.
REFERENCES: Return To Full Text Opinion
Go to Supreme Court Brief(s) Go to Oral
Argument Transcript
16B Am Jur 2d, Constitutional Law 792, 916; 42 Am Jur
2d, Initiative and Referendum 10
USCS, Constitution, Amendment 14; 42 USCS 3601 et seq.
L Ed Digest, Constitutional Law 549, 745.5; Evidence
904.3
L Ed Index, Due Process; Equal Protection; Housing and
Urban Redevelopment; Initiative, Referendum, and
Recall
Annotation References:
Supreme Court's views as to constitutionality of residential zoning restrictions. 52 L Ed 2d 863.
Supreme Court's view as to applicability, to conduct of private person or entity, of equal protection and due process clauses of the Fourteenth Amendment. 42 L Ed
2d 922.
Racial discrimination in connection with transfer or ownership of real property or interest therein-- Supreme
Court cases. 24 L Ed 2d 889.
The Supreme Court and the right of free speech and press. 93 L Ed 1151, 2 L Ed 2d 1706, 11 L Ed 2d 1116,
16 L Ed 2d 1053, 21 L Ed 2d 976.
Race discrimination-- Supreme Court cases. 94 L Ed
1121, 96 L Ed 1291, 98 L Ed 882, 100 L Ed 488, 3 L Ed
2d 1556, 6 L Ed 2d 1302, 10 L Ed 2d 1105, 15 L Ed 2d
990, 21 L Ed 2d 915.
Evidence of discriminatory effect alone as sufficient to prove, or to establish prima facie case of, violation of
Fair Housing Act (42 USCS 3601 et seq.). 100 ALR Fed
97.
Referendum relating to low- or moderate-income housing projects as constituting racial discrimination in violation of Federal Constitution. 15 ALR Fed 613.
Relief under Federal Civil Rights Act of 1871 (42
U.S.C.A. 1983 [ 42 USCS 1983]) against denial of building permit or zoning change for privately sponsored low- or moderate-income housing projects, on grounds of racial discrimination. 12 ALR Fed 964.