CITY OF CUYAHOGA FALLS, OHIO, et al. v. BUCK- EYE COMMUNITY HOPE FOUNDATION et al.

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188 OCTOBER TERM, 2002
Syllabus
CITY OF CUYAHOGA FALLS, OHIO, et al. v. BUCK-
EYE COMMUNITY HOPE FOUNDATION et al.
certiorari to the united states court of appeals for
the sixth circuit
No. 01–1269. Argued January 21, 2003—Decided March 25, 2003
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 develop-
ing 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formal petition requesting that the ordinance be repealed or submitted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 peti-
tion stayed the site plan’s implementation until its approval by the vot-
ers. An Ohio court denied respondents an injunction against the peti-
tion, 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 Su-
preme 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 reduc-
ing 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 allow-
ing 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.

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Syllabus
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.
Because respondents claim injury from the referendum petitioning proc-
ess, 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, are inapposite. Neither of the official acts respond-
ents 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 fa-
cially neutral petitioning procedure, and the city engineer, in refusing
to issue the permits, performed a nondiscretionary, ministerial act con-
sistent with the City Charter. Respondents point to no evidence sug-
gesting that these acts were themselves motivated by racial animus.
While they and the Sixth Circuit cite evidence of allegedly discrimina-
tory 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. 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’ alternative the-
ory—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, respond-
ents never articulated a cognizable legal claim on such grounds. Pp.
194–198.
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 peti-
tion was pending in no sense constituted egregious or arbitrary govern-
ment conduct denying respondents the 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 engi-
neer represented an eminently rational directive. Indeed, the site plan,
by law, could not be implemented until the voters passed on the referen-

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190 CUYAHOGA FALLS v. BUCKEYE COMMUNITY
HOPE FOUNDATION
Syllabus
dum. Respondents’ second theory—that the city’s submission of an ad-
ministrative land-use determination to the charter’s referendum proce-
dures 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. Though a referendum’s substantive result may be
invalid if it is arbitrary or capricious, respondents do not challenge the
referendum itself. Pp. 198–199.
3. Because respondents have abandoned their Fair Housing Act dis-
parate impact claim, the Sixth Circuit’s disparate impact holding is va-
cated, and the case is remanded with instructions to dismiss the relevant
portion of the complaint. Pp. 199–200.
263 F. 3d 627, reversed in part, vacated in part, and remanded.
O’Connor, J., delivered the opinion for a unanimous Court. Scalia, J.,
filed a concurring opinion, in which Thomas, J., joined, post, p. 200.
Glen D. Nager argued the cause for petitioners. With him
on the briefs were Virgil Arrington, Jr., Michael A. Carvin,
and Michael S. Fried.
David B. Salmons argued the cause pro hac vice for the
United States as amicus curiae urging reversal. With him
on the brief were Solicitor General Olson, Assistant Attor-
ney General Boyd, Deputy Solicitor General Clement, Mark
L. Gross, and Teresa Kwong.
Edward G. Kramer argued the cause for respondents.
With him on the brief were Diane E. Citrino, Kenneth Ko-
walski, and Michael P. Seng.*
*Briefs of amici curiae urging reversal were filed for the City of Ath-
ens, Ohio, et al. by Barry M. Byron, John E. Gotherman, and Garry E.
Hunter; and for the International Municipal Lawyers Association et al. by
Henry W. Underhill, Jr., Charles M. Hinton, Jr., and Brad Neighbor.
Briefs of amici curiae urging affirmance were filed for the Lawyers’
Committee for Civil Rights Under Law et al. by Barbara Arnwine,
Thomas J. Henderson, Cheryl L. Ziegler, Eva Jefferson Paterson, Javier
N. Maldonado, and Michael Churchill; for the National Association of
Home Builders by Thomas Jon Ward; for the National Fair Housing Alli-
ance et al. by Joseph R. Guerra, Thomas Healy, John P. Relman, Meera

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Opinion of the Court
Justice O’Connor delivered the opinion of the Court.
In 1995, the city of Cuyahoga Falls, Ohio (hereinafter
City), submitted to voters a facially neutral referendum peti-
tion that called for the repeal of a municipal housing ordi-
nance authorizing construction of a low-income housing com-
plex. 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 Feb-
ruary 1996, Buckeye submitted a site plan for Pleasant
Meadows, a multifamily, low-income housing complex, to the
city planning commission. Residents of Cuyahoga Falls im-
mediately expressed opposition to the proposal. See 263
F. 3d 627, 630 (CA6 2001). After respondents agreed to var-
ious conditions, including that respondents build an earthen
wall surrounded by a fence on one side of the complex, the
commission unanimously approved the site plan and submit-
ted 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 refer-
Trehan, and Robert G. Schwemm; and for the National Multi Housing
Council et al. by Leo G. Rydzewski and Clarine Nardi Riddle.
John H. Findley and Meriem L. Hubbard filed a brief for the Pacific
Legal Foundation et al. as amici curiae.

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Opinion of the Court
endum petition drive. See Cuyahoga Falls City Charter,
Art. 9, § 2, 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,
191; Tr. 182–185, 270, 316. Nevertheless, because the plan
met all municipal zoning requirements, the city council ap-
proved the project on April 1, 1996, through City Ordi-
nance No. 48–1996.
On April 29, a group of citizens filed a formal petition with
the City requesting that the ordinance be repealed or sub-
mitted to a popular vote. Pursuant to the 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
against the petition in state court, arguing that the Ohio
Constitution does not authorize popular referendums on ad-
ministrative matters. On May 31, the Court of Common
Pleas denied the injunction. Civ. No. 96–05–1701 (Summit
County), App. to Pet. for Cert. 255a. A month later, re-
spondents 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 peti-
tions.” 263 F. 3d, at 633.
In November 1996, the voters of Cuyahoga Falls passed
the referendum, thus repealing Ordinance No. 48–1996. In

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Opinion of the Court
a joint stipulation, however, the parties agreed that the
results of the election would not be certified until the liti-
gation 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. 82 Ohio St. 3d 539, 697
N. E. 2d 181 (holding that the Ohio State Constitution au-
thorizes 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 mon-
etary relief. Buckeye alleged that “in allowing a site plan
approval ordinance to be submitted to the electors of Cuya-
hoga Falls through a referendum and in rejecting [its] appli-
cation for building permits,” the City and its officials violated
the Equal Protection and Due Process Clauses of the Four-
teenth Amendment, as well as the Fair Housing Act, 42
U. S. C. § 3601. Complaint in No. 5:96 CV 1458 ¶ 1 (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. 970 F. Supp. 1289, 1308 (ND Ohio 1997).
After the Ohio Supreme Court declared the referendum in-
valid in 1998, thus reducing respondents’ action to a claim
for damages for the delay in construction, the City and its
officials again moved for summary judgment. On November

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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 peti-
tion to stay the implementation of the site plan, gave effect
to the racial bias reflected in the public’s opposition to the
project. See 263 F. 3d, at 639. The court then held that
even if respondents failed to prove intentional discrimina-
tion, 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 ex-
isted as to whether the City, by denying respondents the
benefit of the lawfully approved site plan, engaged in arbi-
trary and irrational government conduct in violation of sub-
stantive due process. Id., at 644. We granted certiorari,
536 U. S. 938 (2002), and now reverse the constitutional hold-
ings and vacate the Fair Housing Act holding.
II
Respondents allege that by submitting the petition to the
voters and refusing to issue building permits while the peti-
tion was pending, the City and its officials violated the Equal
Protection Clause. See Complaint ¶ 41. Petitioners claim
that the Sixth Circuit went astray by ascribing the motiva-
tions 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.
We have made clear that “[p]roof of racially discriminatory
intent or purpose is required” to show a violation of the
Equal Protection Clause. Arlington Heights v. Metropoli-
tan Housing Development Corp., 429 U. S. 252, 265 (1977)
(citing Washington v. Davis, 426 U. S. 229 (1976)). In decid-

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ing the equal protection question, the Sixth Circuit erred in
relying on cases in which we have subjected enacted, discre-
tionary 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 (1985); Arlington Heights v.
Metropolitan Housing Development Corp., supra, at 268;
and Hunter v. Erickson, 393 U. S. 385, 392 (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.
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 therefore cannot be
said to have given effect to voters’ allegedly discriminatory
motives for supporting the petition. Similarly, the city engi-
neer, in refusing to issue the building permits while the ref-
erendum was still pending, performed a nondiscretionary,
ministerial act. He acted in response to the city law direc-
tor’s instruction that the building permits “could not . . .
issue” because the charter prohibited a challenged site-plan
ordinance from going into effect until “approved by a major-
ity of those voting thereon,” App. 16. See 263 F. 3d, at 633.
Respondents point to no evidence suggesting that these offi-
cial acts were themselves motivated by racial animus. Re-
spondents 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.
Instead, to establish discriminatory intent, respondents
and the Sixth Circuit both rely heavily on evidence of alleg-

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edly discriminatory voter sentiment. See id., at 635–637.
But statements made by private individuals in the course of
a citizen-driven petition drive, while sometimes relevant to
equal protection analysis, see supra, at 194, 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 (1982) (“ ‘[T]he 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 (1948))). More-
over, respondents put forth no evidence that the “private
motives [that] triggered” the referendum drive “can fairly be
attributed to the State.” Blum v. Yaretsky, supra, at 1004.
In fact, by adhering to charter procedures, city officials
enabled public debate on the referendum to take place, thus
advancing significant First Amendment interests. In as-
sessing the referendum as a “basic instrument of democratic
government,” Eastlake v. Forest City Enterprises, Inc., 426
U. S. 668, 679 (1976), we have observed that “[p]rovisions for
referendums demonstrate devotion to democracy, not to bias,
discrimination, or prejudice,” James v. Valtierra, 402 U. S.
137, 141 (1971). And our well established First Amendment
admonition that “government may not prohibit the expres-
sion of an idea simply because society finds the idea itself
offensive or disagreeable,” Texas v. Johnson, 491 U. S. 397,
414 (1989), dovetails with the notion that all citizens, regard-
less of the content of their ideas, have the right to petition
their government. Cf. Meyer v. Grant, 486 U. S. 414, 421–
422 (1988) (describing the circulation of an initiative petition
as “ ‘core political speech’ ”); Police Dept. of Chicago v. Mos-
ley, 408 U. S. 92, 96 (1972) (“[G]overnment may not grant the
use of a forum to people whose views it finds acceptable, but
deny use to those wishing to express less favored or more
controversial views”). Again, statements made by decision-
makers or referendum sponsors during deliberation over a

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referendum may constitute relevant evidence of discrimina-
tory intent in a challenge to an ultimately enacted initiative.
See, e. g., Washington v. Seattle School Dist. No. 1, 458 U. S.
457, 471 (1982) (considering statements of initiative sponsors
in subjecting enacted referendum to equal protection scru-
tiny); Arlington Heights v. Metropolitan Housing Devel-
opment Corp., 429 U. S., at 268. But respondents do not
challenge an enacted referendum.
In their brief to this Court, respondents offer an alterna-
tive theory of equal protection liability: that city officials, in-
cluding 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. Re-
spondents allege, among other things, that the city law direc-
tor 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 oppo-
sition. 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
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’ decision-
making during the drive, much less the kind of “coercive
power” either “overt or covert” that would render the vot-
ers’ 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’ senti-
ments can be attributed 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 inde-
pendent statements by private citizens. See 263 F. 3d, at

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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
In evaluating respondents’ substantive due process claim,
the Sixth Circuit found, as a threshold matter, that respond-
ents 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 City’s submission of an administra-
tive land-use determination to the charter’s referendum pro-
cedures constituted per se arbitrary conduct. See Com-
plaint ¶¶ 39, 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 gov-
ernment conduct. See County of Sacramento v. Lewis, 523
U. S. 833, 846 (1998) (noting that in our evaluations of “abu-
sive 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 “[n]o such ordinance [challenged by a petition] shall go
into effect until approved by a majority of those voting

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thereon,” Art. 9, § 2, App. 15, the law director’s instruction
to the engineer to not issue the permits represented an emi-
nently rational directive. Indeed, the site plan, by law,
could not be implemented until the voters passed on the
referendum.
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 referen-
dums. In Eastlake v. Forest City Enterprises, Inc., 426
U. S., at 672, 675, we made clear that 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 af-
fairs.’ ” Id., at 674, n. 9. Cf. James v. Valtierra, 402 U. S.
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 leg-
islative decision, did not constitute per se arbitrary govern-
ment conduct in violation of due process.
IV
For the reasons detailed above, we reverse the Sixth Cir-
cuit’s judgment with 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

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Scalia, J., concurring
disparate impact holding and remand with instructions to
dismiss, with prejudice, the relevant portion of the com-
plaint. See Deakins v. Monaghan, 484 U. S. 193, 200 (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 for further proceedings
consistent with this opinion.
It is so ordered.
Justice Scalia, with whom Justice Thomas joins,
concurring.
I join the Court’s opinion, including Part III, which con-
cludes 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 capri-
cious” 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 inter-
est[s]” from deprivation by the government, unless the in-
fringement is narrowly tailored to serve a compelling state
interest. Washington v. Glucksberg, 521 U. S. 702, 721
(1997). Freedom from delay in receiving a building permit
is not among these “fundamental liberty interests.” To the
contrary, the Takings Clause allows government confisca-
tion 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 “compel-
ling state interest.” Those who claim “arbitrary” depriva-
tions of nonfundamental liberty interests must look to the
Equal Protection Clause, and Graham v. Connor, 490 U. S.
386, 395 (1989), precludes the use of “ ‘substantive due proc-

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Scalia, J., concurring
ess’ ” 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 (1971), and the delay in issuing the permit was pre-
scribed by a duly enacted provision of the Cuyahoga Falls
City Charter (Art. 9, § 2), which surely constitutes “due proc-
ess of law,” see Connecticut Dept. of Public Safety v. Doe,
ante, p. 8 (Scalia, J., concurring).
With these observations, I join the Court’s opinion.