equalities in school finance between rich and poor school districts found in Texas. however, are the rule throughout the country.9

A view of inequality on the national level begins with a look at the disparties among the States where average per pupil expenditures currently range from a high of approximately $1,400 in Alaska to a low of less than $500 in Alabama.10 Nor does State expenditures necessarily reflect the relative importance a State places on education. For example, Mississippi and Alabama, which rank 49th and 50th in terms of per pupil expenditures devote 45 percent and 40.2 percent respectively of their public expenditures to education. Alaska and New York, on the other hand, which rank first and second in terms of per pupil expenditures devote only 32.1 percent 33.9 percent respectively of their public expenditures to education.1

12

11

State averages, by definition, mask the wide range of disparities within the States. In Wyoming, expenditures range from a low of $618 per pupil to a high of $14,554; in Kansas, from $454 to $1,831; in Vermont, from $357 to $1,517; in Washington, from $434 to $3,406; in Oklahoma, from $342 to $2,566; in Colorado, from $444 to $2,801; and in Pennsylvania, from $484, to $1,401.13

In California expenditures per pupil for Emery Unified and Newark Unified. both school districts in Alameda County, were $2,223 and $616 respectively.1 In New Jersey 14 districts with a total of 13,391 pupils spent below $700 per pupil while 16 districts with 29,653 pupils spent over $1,500 per pupil.15 In New York, two Long Island school districts within 10 miles of each other-Great Neck and Levittown-spent $2,078 and $1,189 respectively per pupil.16

Not only does the current system of school finance produce spectacular divergencies in expenditures for students in different school districts, but it also creates inequalities in terms of the taxes paid to finance educational expenditures. Local funds, derived almost exclusively from the real property tax, provide better than one-half the revenue for elementary and secondary education for the Nation as a whole." This subjects educational financing to the massive disparities in tax base that characterize American local governments.18 Consequently, the richer a district is, the less severely it need tax itself to raise funds. Stated another way, a man in a poor district must pay higher local rates for the same or lower per pupil expenditures."

17

In Alameda County, California, Emery Unified School District manages to spend $2,223 per pupil with a $2.57 tax rate while Newark Unified must tax at rate of $5.65 to spend $616 per pupil.20 In Essex County, New Jersey, Millburn with a $1.43 school tax rate, compared to $3.69 in Newark, has more teachers per pupil than Newark, spends more for teachers' salaries per pupil ($685 to $454) and has more professional staff per pupil (61 to 53)."

21

In Arizona, Morenci Elementary School District produced $250 per pupil in local revenue with a tax rate of $.67. Roosevelt Elementary, however, had to use a tax rate of $7.14 to produce a mere $99 in local revenue. In Texas, the

22

See Coons, Clune, and Sugarman, "Educational Opportunity: A Workable Constitutional Test for State Financial Structures", 57 Cal. L. Rev. 305, 317 (1969): "(1) Poorer districts in general tend to make a greater tax effort for education than do wealthier districts, (2) Poorer districts in general have significantly lower educational offerings than do wealthier districts."

14 Serrano v. Priest, 5 Cal. 3d 584, 600 n. 15, 487 P. 2d 1241. 96 Cal. Rpts. 601 (1971). 15 Robinson v. Cahill, No. L-18704-69 at 23 (Super. Ct. N.J. 1971).

16 Report of he New York State Commission on The Quality Cost, and Financing of Elementary and Secondary Education, Press Summary, Jan. 30, 1972 at 2.

17 In 1970-71 local district revenues provided 52 percent of the funds for public education: States provided 44.1 percent and the Federal Government provided 6.9 percent. See N.Y. Times, Jan, 10, 1972 sec. E at 2 (table).

18 See Berke and Callahan, "Inequities in School Finance" 61 (1971) a paper presented at the 1971 Annual Convention of the American Academy for the Advancement of Science and reprinted by the Select Committee on Equal Educational Opportunity, U.S. Senate, 92d Cong. 2d sess. (Comm. print 1972.)

19 Berke states that one of the cruel ironies in the current approach to supporting schools in Texas is that the communities which have the least money for their schools are the very districts which tax themselves most heavily to raise school revenues." Berke, Affidavit in Rodriguez v. San Antonio C.A. 68-1755A at 13 (W.D. Texas 1971).

C.

20 These, and other discrepancies in California, are illustrated by the chart in appendix 21 Robinson v. Cahill op. cit. supra note at 20.

22 Hollins v. Shofstall No. C-253652 at 5 (Super. Ct. Maricopa Cty. 1971),

10 districts with above $100,000 market value of taxable property per pupil would have to tax at $.64 to obtain the highest yield; the 4 districts below $10,000 would have to tax at $12,83."

A further glaring inequity in current systems of school finance is that variations in expenditures tend to be inversely related to educational need. City students, with greater than average educational needs, consistently had less money spent on their education and higher pupil/teacher ratios to contend with than did their high-income counterparts in the favored schools of suburbia. In 1967, Los Angeles, for example, spent $601 per pupil, while its suburb Beverly Hills spent $1,192. New York City spent $854; its suburb Great Neck, $1,301. Dr. James B. Conant deplored these inequities:

24

25

"The contrast in the money spent per pupil in wealthy suburban schools and in slum schools of the large cities challenges the concept of equality of opportunity in American public education." 26

The current pattern of resource allocation has been brought about by the State in two ways. First, the local districts with unequal taxable resources have been created by the States and second, State aid systems have been adopted that are insufficiently equalizing to offset the disparities among the districts.

School districts are creatures of the State. As the court noted in Serrano v. Priest, "Governmental action drew the school district boundary lines, thus determining how much local weath each district would contain." 27 Having created financially disparite districts, the States have made efforts to equalize the differences through financial aid to local school districts.

Approximately 44 percent of revenues for elementary and secondary education is contributed by the States through flat grants or equalizing grants or combinations of the two. The flat grant consists of an absolute number of dollars distributed to each school district on a per pupil or other unit standard. Plans employing equalizing grants (or foundation plans) are more complicated and have a number of variants. In its simplest form, a foundation plan consists of a State guarantee to a district of a minimum level of available dollars per student, if the district taxes itself at a specified rate. The State aid makes up the difference between the guaranteed amount and local collections at the specified rate.29

After its original proposal in 1924, the equalizing approach became the model of numerous State adaptations. Compromises with the strict application of the equalization objectives were made in most States to accommodate: (a) the longstanding tradition of flat grants; (b) the reluctance of State officials to increase State taxes to fully finance equalization plans; and (c) the desire of some localities to finance truly superior schools." In most States the foundation plan ended up providing the poorest districts with basic education programs at a level well below that of the wealtheir districts that were left with ample local tax leeway

23 The complete chart from which this information was taken, included in the affidavit submitted by Dr. Joel Berke in Rodriguez v. San Antonio C.A. No. 68-1755A (W.D. Texas 1971), is attached as appendix D.

24 See Berke and Kelly, "The Financial Aspects of Equality of Educational Opportunity" 10 (1971), reprinted by the Select Committee on Equal Educational Opportunity. U.S. Senate, 92d Cong., 2d sess. (comm. print 1972). See also U.S. Commission on Civil Rights "Racial Isolation in the Public Schools" (1967) which discusses the problems cities face in financing their schools. "Under the system of financing, the adequacy of educational services is heavily dependent on the adequacy of each community's tax base. With the increasing loss of their more affluent white population, central cities also have suffered a pronounced erosion of fiscal capacity. At the same time, the need for city services has increased, particularly in the older and larger cities. The combination of rising costs and a declining tax base has weakened the cities' capacity to support education at levels comparable to those in the suburbs." Id. at 25. The Commission explains that one reason for these disparities in educational spending between cities and suburbs are the greater claims made on city budgets for other services. Cities spend a third more per capita for welfare and two times more per capita for public safety than suburbs, while suburbs. spend nearly 50 percent more per capita for education. Suburbs spend nearly twice the proportion of their total budget upon education as cities. Id. at 26.

25 The phenomena of divergent expenditures in the same metropolitan area is further illustrated by the chart in appendix E.

26 Conant. "Slums and Suburbs" 146 (1961).

275 Cal. 3d 584, 603 (1971). See also Schoettle, "The Equal Protection Clause in Public Education". 71 Col. L. Rev. 1355, 1410 (1971): "Allocation of tax base is no less a State act than would be the distribution of dollars by the State itself in unequal and arbitrary amounts to residents of different units of local government.'

28 For a full discussion of State equalization plans see Coons, Clune, and Sugarman, "Private Wealth and Public Education,' " ch. 2 (1970); statement of Charles S. Benson, hearings before the Select Committee on Equal Educational Opportunity of the U.S. Senate, 92d Cong., 1st sess., pt. 16A, at 6709, 6712-6715 (hereinafter referred to as "equal educational opportunity hearings.")

29 See Advisory Committee on Intergovernmental Relations, "State Aid to Local Government" 40 (1969).

to exceed the minimum foundation plan level without unduly straining local resources."

30

33

Although Federal educational aid programs make up only about 8 percent of all revenues for public education, they have had some impact on equalizing resources. Title I of the Elementary and Secondary Education Act, enacted in 1965, accounts for close to 40 percent of Federal funds expended on elementary and secondary education." It is designed to meet the educational needs of children from low income families; " because it is responsive to educational needs of the poor it has had an equalizing effect. Other Federal programs, however, often serve to reinforce disparities. Funds under the National Defense Education Act, for example, sometimes have gone disproportionately to suburban schools." Aid to federally impacted areas never was intended to have an equalizing effect. It is designed merely to compensate for the presence of large scale tax exempt Federal activities; need is not a criterion. Nevertheless, "it is the small but important share of educational financing that has been contributed by the Federal Government that has been the most effective fiscal contribution to equal educational opportunity in American school finance." 36

35

II. THE PURSUIT OF "EQUAL EDUCATIONAL OPPORTUNITY"

The fundamental relationship between education and democracy has been a premise of our form of government. George Washington stressed this in his Farewell Address:

"Promote then as an object of primary importance, Institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened." Thomas Jefferson echoed this conviction:

99 37

"I think by far the most important bill in our whole code [of Virginia] is that

30 Ibid. See statement of National Committee for Support of the Public Schools, "Equal Educational Opportunity Hearings" pt. 16 D-3 at 8287, 8288 which summarized the major inadequacies of State equalization programs: "State systems of education finance distribute State funds through foundation programs which fail to correct the wealth disparities among local districts. While these programs vary widely in specifics from State-to-State they frequently suffer from three major flaws, and a host of minor ones:

"Foundation amounts-the maximum amount the State assures each district-are inadequate. For instance, California's maximum amount is $355 per elementary pupil, Maryland's is $370.

"Flat or minimum grants which award money on the basis of number of pupils to all districts, wealthy or poor. When they are awarded as part of the maximum foundation amount, as in California, or are substituted for districts not qualifying for minimum amounts under an equalization program, as in Maryland, they subsidize the wealthy and attenuate the disparities.

"Districts must raise money locally to support education programs superior to those provided for in the foundation amount. This gives rise to disparities in tax effort and in expenditures. Even though poorer districts make the same or greater tax effort on behalf of their schools, they are able to purchase much less education than the rich." It also is noteworthy that the basis of measurement used to determine a district's allocation tends to discriminate against cities. Funds are distributed on the basis of pupil weighted average daily attendance (WADA). The WADA formula has an adverse impact on cities because of their truancy problems. Cities, therefore, typically have enrollments greater than the WADA while suburban and rural districts have enrollments less than the WADA. See Berke, Goettel, and Andrew, "Equity in Financing New York City Schools: The Impact of Local, State, and Federal Policy", prepared for publication in February 1972 issue of "Education and Urban Society." See also Kirp, "The Poor, the Schools, and Equal Protection," "Equal Educational Opportunity" 139, 168 (1969); U.S. Commission on Civil Rights, "Racial Isolation in the Public Schools" 28 (1967): "State aid programs designed decades ago to assist the then poor suburban districts often support the now wealthier suburbs at levels comparable to or higher than the cities."

31 See Berke and Kelly, op. cit. supra note at 27; U.S. Commission on Civil Rights, "Racial Isolation in the Public Schools" 28-29 (1967); Advisory Committee on Intergovernmental Relations, "State Aid to Local Government" 37-39 (1969).

32 For a discussion of title I and other Federal aid programs that assist minority group children, see Glickstein, "Federal Educational Programs and Minority Groups," 38 J. of Negro Ed. 303 (1969).

See Berke and Kelly, op. cit. supra note at 27, 30; Berke and Callahan, op. cit. supra note at 73-75; U.S. Commission on Civil Rights, "Racial Isolation in the Public Schools" 29 (1967).

34 U.S. Commission on Civil Rights, "Racial Isolation in the Public Schools" 28 (1967). 35 Ibid.

36 Berke and Callahan, op. cit. supra note at 73.

37 Farewell Address, 35 The Writings of George Washington" (Bicentennial edition) 230. See also Id. at vol. 28, p. 27.

for the diffusion of knowledge among the people. No other sure foundation can be devised for the preservation of freedom and happiness."

9 38

Our Founding Fathers, moreover, regarded the provision of education as a public function. "It is not too much to say," wrote John Adams, "that schools for the education of all should be placed at convenient distances and maintained at the public expense." 39

40

Public education in the United States dates back to the Massachusetts School law of 1647, and within a generation most of the other New England colonies had followed Massachusetts' example. Development of public schools in the middle and southern colonies was much slower; education outside of New England still was primarily a private matter at the close of the 18th century." Public interest in public education increased during the first half of the nineteenth century and by 1850 "the battle for free state schools" was won in the Northern States.42 Progress was slower in the South but by 1918 education in every State of the Union was not only free but compulsary.13

Today, the duty of government to provide education is generally conceded. It has been specifically provided for in the Constitutions of 50 states of the Union" and has been given eloquent recognition in numerous judicial opinions such as that of the Supreme Court of Michigan which said:

44

"We supposed it had always been understood in this state that education, not merely in the rudiments, but in an enlarged sense, was regarded as an important practical advantage to be supplied at their option to rich and poor alike, and not as something pertaining merely to culture and accomplishment to be brought as such within the reach of those whose accumulated wealth enabled them to pay for it.45

Education was widely regarded as a means of fostsering social cohesion. Samuel Lewis, first superintendent of common schools in Ohio, wrote in 1836:

"Take fifty lads in a neighborhood, including rich and poor-send them in childhood to the same school-let them join in the same sports, read and spell in the same classes, until their different circumstances fix their business for life: some go to the field, some to the mechanic's shop, some to merchandise: one becomes wealthy; the majority live on with mere competency-a few are reduced to beggary! But let the most eloquent orator, that ever mounted a western stump, attempt to prejudice the minds of one part against the other-and so far from succeeding, the poorest of the whole would consider himself insulted." 46

But certain structural characteristics of our system of public education worked. against the goal of social cohesion. For one thing, our schools were segregated by race, and, in many places, by ethnic background. It was in the area of race that the first battles to achieve equal educational opportunity were fought.

The attack began by efforts to insure that "separate" facilities were, in fact, "equal," as required by the Supreme Court's decision in Plessy v. Ferguson.47

38 Letter to George Wythe, 10 "The Papers of Thomas Jefferson" 244 (Princeton University Press 1954). See also Id. at vol. 9, p. 151; 6 "The Works of John Adams" 168 (1851); U.S. Commission on Civil Rights, "Racial Isolation in the Public Schools" 1-2 (1967). Early legislation reflected the importance attached to education. For example, the northwest ordinance of 1787 provided: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." 1 "Documents of American History" 131 (Commager ed. 1958). 39 "The Works of John Adams," op. cit supra note.

40 Cubberley, "Public Education in the United States" 17-19 (1919); 1 "Documents in American History" 29 (Commager ed. 1958).

41 Cubberley, op. cit. supra note at 77.

42 Id. at 101-115; 118-152.

43 Id. at 246-254; Morison and Commager, II "The Growth of the American Republic" 306-307 (1956).

See, e.g., Constitution of Florida, art. 12, sec. 1; Constitution of Idaho, art. 9, sec. 1; Constitution of Michigan, art. XI, sec. 1; Constitution of North Carolina, art. I, sec. 27; Constitution of Rhode Island, art. 12, sec. 1. See also Article 26.1 of the United Nations Universal Declaration of Human Rights which provides: "Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available, and higher education shall be equally accessible to all on the basis of merit."

45 Stuart v. School District No. 1 of Kalamazoo, 30 Mich. 69, 75 (1874). See also Brown V. Board of Education, 347 U.S. 483, 493 (1954); City of Louisville v. Commonwealth, 134 Kv. 488, 492-93, 121 S.W. 411 (1909) Malone v. Hayden, 329 Pa. 213, 223-24. 197 Atl. 344, 352 (1938); Bissell v. Davison, 65 Conn. 183, 190-91, 32 Atl. 348, 349 (1894); Herold v. Parish Board of School Directors, 136 La. 1034, 68 So. 116, 119 (1915); 1 U.S. Commission on Civil Rights, Racial Isolation in the Public Schools 260 (1967).

46 Quoted in Gardner, J., "Excellence" 117 (1961). See also Wilson, "Social Class and Equal Educational Opportunity," in "Equal Educational Opportunity" 81-82 (1969). 47 163 U.S. 537 (1896).

48

Courts found violations of the equal protection clause of the Fourteenth Amendment where it was shown that there were inequalities between Negro and white schools in buildings and other physical facilities, course offerings, length of school term, transportation facilities, extracurricular activities, cafeteria facilities and geographical convenience.49

52

Б1

In Missouri ex rel. Gaines v. Canada 50 and in Sipuel v. Board of Regents, the Supreme Court-considering alleged tangible inequalities-invalidated school segregation where it was shown that the quality of the facilities provided for Negroes was unequal to the quality of the facilities afforded whites. Next, the Court considered whether intangible factors- more difficult to measure than bricks and mortar-could be considered in determining whether there has been a denial of equal educational opportunities. The Court answered affirmatively in Sweat v. Painter, where it held that more than physical facilities needed to be considered in judging whether Texas was providing equal educational opportunity in separate facilities to black law students. "What is more important", the Court stressed, is the fact that the University of Texas Law School "possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school." 53 Similarly, in McLaurin v. Oklahoma State Regents for Higher Education 54 the Court required that a black student admitted to a white graduate school be treated like all other students and not segregated within the school. Again, the Court relied upon "intangible considerations", including "his ability to engage in discussion and exchange views with other students .

,, 55

The fatal blow to the separate but equal doctrine was struck in 1954 with the Court's decision in Brown v. Board of Education.56 Here the Court held that it was unnecessary in each case to demonstrate the harm caused by segregation. Rather, a universal rule was appropriate :

57

are

"[I]n the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment." Of especial importance to the Court in assuring equal treatment was the significance it placed on the role of public education. The Court said:

58

"Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping

48 The 14th amendment to the Constitution provides, in pertinent part: * * * * nor shall any State *** deny to any person within its jurisdiction the equal protection of the laws."

49 See, e.g.. Sinuel v. Board of Regents, 332 U.S. 631 (1948); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938); Gong Lum v. Rice, 275 U.S. 78 (1927); Carter v. School Board, 182 F. 2d 531 (4th Cir. 1950); Davis v. County School Board, 103 F. Supp. 337 (E.D. Va. 1952), rev'd sub nom. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Butler v. Wilemon, 86 F. Supp. 397 (N.D. Tex. 1949); Pitts v. Board of Trustees, 84 F. Supp. 975 (E.D. Ark. 1949); Freeman v. County School Board, 82 F. Supp. 167 (E.D. Va. 1948), aff'd, 171 F. 2d 702 (4th Cir. 1948). See also Leflar and Davis, "Segregation in the Public Schools-1953," 67 Harv. L. Rev. 377, 430-35 (1954); Horowitz, "Unseparate but Unequal-The Emerging Fourteenth Amendment Issue in Public School Education," 13 U.C.L.A. L. Rev. 1147, 1149 (1966). Mary E. Mebane [Liza], a teacher at South Carolina State College, recently described what it was like to go to a separate but unequal school: "It's when you're in the second grade and your eye reads the name 'Bragtown High School' and you also see in the front of the book discard' and even though you're only 7 years old you know, as you turn the pages that have tears patched with a thick yellowing tape, that you're using a book that a white girl used last year and tore up, and your mother is paying book rent just like her mother paid book rent. You get the second-hand book and it gives you a thing about second-hand books that does not go away until you are teaching yourself and are able to buy all the new ones you want." N.Y. Times, Mar. 15, 1972, at 43, col. 1-2.

50 305 U.S. 337 (1968).

51 332 U.S. 631 (1948).

52 339 U.S. 629 (1950).

53 Id. at 634.

54 339 U.S. 637 (1950).

55 Id. at 641. See also 1 U.S. Commission on Civil Rights, "Racial Isolation in the Public Schools" 246-247 (1967); U.S. Commission on Civil Rights "Freedom to the Free" 144147 (1963).

56 347 U.S. 483 (1954).

57 Id. at 495.

58 Id. at 493.