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him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms."
The Brown decision also has been applied to segregated schooling involving Mexican American children.
Since the Brown decision, there has been an unremitting struggle—through the courts, the legislatures and executive action—to eliminate racial discrimination from the operation of our public schools. The increasing sensitivity that Brown ! created to inequities among schools broadened the search for equality to factors other than race. A problem of lower visibility that increasingly has attracted the attention of scholars, lawyers and the courts is that of interdistrict financial disparities. Equal educational opportunity not only involves the elimination of invidious racial and ethnic discriminations but also requires that public money expended on education be distributed in a non-discriminatory manner. What formula is appropriate for determining whether or not education funds are being dispersed to guarantee equal educational opportunities?
The answer to this question does not necessarily depend on a simple quantitative weighing of resources; at times, the attainment of equality requires unequal efforts and expenditures. An adequate definition of “equal educational opportunity” requires the consideration of varied factors. Many formulations have been advanced.62
The definitions generally can be categorized as those which place restraints on the State and those which impose upon the State some type of affirmative obligation. In the first category are formulations which ordain that a State's educational financing system may not discriminate, against the poor, on the basis of the wealth of the residents of a school district,64 on the basis of geography, or against taxpayers by imposing unequal burdens for a common State purposes." Definitions of this sort are particularly suitable for the courts which usually are reluctant to inject themselves into such subjective and substantive questions as the appropriate product of an educational system. These definitions permit the State to design its educational system in a variety of ways so long as it does not violate some relatively clear formulation of equal protection."
59 See, e.g., Mendez v. Westminster School District of Orange County, 64 F. Supp. 544 (S.D. Cal. 1946), aff'd, 161 F. 2d 776 (9th Cir. 1948); Delgado v. Bastrop Independent School District, Civ. No. 388 (W.D. Tex. 1948); Gonzales v. Sheely, 96 F. Supp. 1004 (D.C. Ariz. 1951); Romero v. Weakley, 226 F. 2d 399 (9th Cir. 1955); Hernandez v. Driscoll, Civ. No. 1384 (S.D. Tex. 1957), 2 Race Rel. Rep. 329 (1957) ; Cisneros y. Corpus Christi Independent School District, 324 F. Supp. 599, 604-606 (S.D. Tex. 1970). See also U.S. Commission on Civil Rights, Report 1, Merican American Education Study 11-13 (1971).
80 For an account of this struggle, see the following reports of the U.S. Commission on Civil Rights : "1959 Report”; “1961 Report, Volume 2"?; “Civil Rights, 1963" ; "Freedom to the Free" (1963); "Survey of School Desegregation in Southern and Border States, 1965–66” (1966); “Southern School Desegregation 1966–67" (1967) ; "Federal Enforcement of School Desegregation" (1969).
61 But see David K. Cohen, “The Economics of Inequality”, Sat. Rev. 64,79 (Apr. 19, 1969) who argues that "much of the interest in intrastate fiscal disparities arises precisely from despair over the evident failure of efforts to resolve" the two central problems of public education of our times--its organization along racial lines and its apparent inability to reduce racial and class disparities in school outcomes. See also Peter Milius in the Washington Post, Nov. 28, 1971 : “Northern liberals who used to stand forcefully for school desegregation are suddenly finding it impolitic, and are looking for alternatives, ways to stay “liberal' without being in favor of busing
The answer that many are tending toward is equalization for desegregation, moving dollars around instead of children. They note that, after all, the object of desegregation all along was only equal educational opportunity. If equalization sounds a little like 'separate but equal', that has not so far bothered these Northerners.
62 See, e.g.. Coons, Clune, and Sugarman, “Educational Opportunity: A Worthwhile Copstitutional Test for State Financial Structures,” 57 Cal. L. Rev. 305. 338-340 (1969) Wise, “Rich Schools, Poor Schools—The Promise of Equal Opportunity” 143-159 (1969) Kirp, “The Poor, the Schools and Equal Protection" in "Equal Educational Opportunity 139, 140, 156 (1969); Coleman, “The Concept of Equality of Educational Opportunity” in “Equal Educational Opportunity" 9 (1969) : Silard and White, “Intrastate Inequalities in Public Education: The Case for Judicial Relief Under the Equal Protection Clause,” 1970 Wis. L. Rev. 7, 25–28 (1970).
63 See amici curiae brief of Center for Educational Policy Research, Center for Law and Education in Serrano v. Priest.
64 See Coons, Clune, and Sugarman, on. cit. sunra note at 311 ; “The quality of public education may not be a function of wealth other than the wealth of the State as a whole."
65 See Wise, op. cit. supra note at 146 : “Equality of educational opportunity exists when a child's educational opportunity does not depend upon either his parents' economic circumstances or his location within the State."
66 See Hollins v. Shofstall, No. C-253652 (Ariz. Super. Ct., Maricopa Cty., Jan. 13, 1971). 67 Wise, op. cit. supra note at 158–159.
Definitions in this category have the virtue of "modesty, clarity, flexibility and relative simplicity."
The definitions of “equal educational opportunity” which impose an affirmative obligation on a State run from the simple "one scholar, one dollar" 7—to the amorphous—"[A] school district is constitutionally required to provide the best possible equality of opportunity . ." 71—to the utopian—"equal educational achievement for every child" to definitions which stress the distribution of funds on the basis of need and then seek to formulate some standards for defining “needs.' Some of these formulas have been advanced in school finance litigation, and we shall now turn our attention to a consideration of the cases.
III. THE SEARCH FOR JUDICIAL REMEDIES A. The Appropriate Constitutional Standard
As we have seen, the equal protection clause of the Fourteenth Amendment has been the battering ram in the pursuit of racial and ethnic equality in public education. It is this same amendment that has been chosen as the weapon of those seeking equality in educational financing. The meaning and sweep of the equal protection clause has been a frequent issue before the Supreme Court and standards have been developed for applying that clause in various situations. These standards provide the backdrop against which the recent school finance cases have been brought. We will review those standards, before turning to the recent cases.
The basis of an equal protection attack on governmental action is that two groups similarly situated have been treated differently e.g., black children and white children, similarly seeking a public education, are required to go to separate schools.
The Court initially developed standards for judging equal protection violations in cases involving economic regulation. In Gulf, Colorado and Santa Fe Ry. v. Ellis, the Court said that legislative classifications “must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.” 74
The Court also has emphasized that the burden of attacking a legislative act lies wholly “on him who denies its constitutionality" Brown v. Maryland." In Lindsley y. Natural Carbonic Gas Co.,14 summarizing the rules by which equal protection arguments must be tested, the Court noted that the person attacking the statutory classification "must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary” and that “if any
08 See Coons, Clune, and Sugarman, op. cit. supra note at 340.
09 See Coleman, op. cit. supra note, Coleman describes the evolving role of Government and educational institutions in assuring equal educational opportunities. Initially the role of the community and educational institutions were relatvely passive; all that was expected was the provision of a set of free public resources. It was then up to the family and child to decide how to use these resources. Today, the responsibility to create achievement lies with the educational institution, not the child.
70 See Spano v. Board of Education of Lakeland Central School District ~ (N.Y. Sup. Ct., Westchester County Jan. 17, 1971).
71 Comment, "Equality of Educational Opportunity : Are Compensatory Programs Constitutionally Required ?”' 42 S. Cal. L. Rev. 146, 150 (1969).
72 Silard and White, op. cit. supra note at 25–26. 73 See Id. at 26–28 ; Kirp, op. cit. supra note; Cf. Cohen, op. cit. supra note at 78:
schoolmen and researchers haven't much evidence about the educational techniques that might satisfy a need criterion, or how much they might cost. Such news is bound to dampen judicial or legislative enthusiasm for a criterion of resource allocation.” See general comment “The Evolution of Equal Protection Education, Municipal Services, and Wealth," 7 Harv. Civ. Lib.—Civ. Rights L. Rev. 103, 172–784.
74 Gulf, Colorado and Santa Fe Ry. v. Ellis, 165 U.S. 150, 155 (1897). See also Southern Ry. v. Greene, 216 U.S. 400, 417 (1910); Atchison Santa Fe Ry. v. Vosburg, 238 U.S. 56, 59 (1915) : Royster Guano Co. v. Virginia, 253 U.S. 412, 415, (1920); Truar v. Corrigan, 257 U.S. 312, 337 (1921); Airway Corp. v. Day, 266 U.S. 71, 85 (1924); Power Mfg. Co. v. Saunders, 274 U.S. 490, 493" (1927); Louisville Gas Co. v. Coleman, 277 U.S. 32, 37 (1928); Ohio Oil Co. v. Conway, 281 U.S. 146, 160 (1930); Metropolitan Co. v. Brownwell, 294 U.S. 580, 583 (1935); Hartford Co. v. Harrison, 301 U.S. 459, 462 (1937); Asbury Hosp. v. Cass County, 326 U.S. 207, 214 (1945); Morey v. Doud, 354 U.S. 457, 465 (1957); Barstrom v. Herold, 383 U.S. 107, 111 (1966); Rinaldi v. Yeager, 384 U.S. 305, 309 (1966). 75 25 U.S. (12 Weat.) 266, 277 (1827). 78 220 U.S. 61, 78–79 (1911).
state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.” 77
But the Court has not been as solicitous of legislative enactments that were alleged to abridge rights of free speech and association, protected by the First Amendment. In Schneider v. State," for example, the Court observed that when a State abridges
fundamental personal rights and liberties .. the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulations directed at other personal activities, but be insufficient to justify such as diminishes rights so vital to the maintenance of democratic institutions.” And in Shelton v. Tucker,to the Court used these words : “[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose.”
In Board of Education v. Barnette,so involving the constitutionality of the public school flag salute requirement, the Court said : “The rights of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which the legislature may have a "rational basis" for adopting. But freedoms of speech and of press, of assembly and of worship may not be infringed on such slender grounds."
Nor is it only in the area of the First Amendment that the Court gives especially close scrutiny to legislative action. Thus, in United States v. Carolene Prods. Co.,81 the Court noted that “[t]here may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution such as those of the first ten amendments, which are deemed equally specific when held to be embraced with the Fourteenth."
In time, the Court recognized that legislative classifications attacked under the Fourteenth Amendment, beyond those encroaching on rights protected by the first ten amendments, could not be treated uniformally and subjected to a “rational basis" test. Different tests were required depending upon the nature of the classifying factor and the interest affected. Thus, the Court has concluded that legislative classifications involving “suspect” 89 criteria or affecting "fundamental rights" will be held to deny equal protection unless justified by a “compelling state interest” 83 In Shapiro v. Thompson,84 the Court articulated this standard :
“Since the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest. Under this standard, the [requirement that new residents to an area wait a one-year period before being eligible for welfare assistance] violates the Equal Protection Clause."
77 The latter of these two rules, which has been stated on innumerable occasions since, see, e.g., Rast v. Van Demain and Lewis Co., 240 U.S. 342, 357 (1916); Crescent Cotton Co. v. Mississippi, 257 U.S. 129, 137 (1921) ; Heisler v. Thomas Colliery Co., 260 U.S. 245, 255 (1922). State Board of Tar Comm. V Jackson, 283 US. 527, 537 (1931); Metropolitan Co. v. Brownell, 294 U.S. 580, 584 (1935) ; Carmichael v. Southern Coal and Coke Co., 301 U.S. 495, 509 (1937); United States v. Carolene Products Co., 304 U.S. 144, 154 (1938) ; Ashury II osp. v. Cass County, op. cit. supra note at 215 ; Morey v Doud, op. cit. supra note at 464 ; Allied Stores v. Bowers, 358 U.S. 522, 528 (1959) ; McGouan v. Baryland, 366 U.S. 420, 426 (1961), appears to have been first stated in Munn v. Illinois, 94 U.S. 113, 132 (1876). In Mwin, an Illinois statute seeking to regulate public warehouses and the storage and inspection of grain was challenged on equal protection grounds. In the cases just cited which repeat the Munn language, all involve the matter of taxation or economic regulation. 78 308 U.S. 147, 161. 70 364 U.S. 479, 488.
81 319 U.S. 624, 639 (1943). See also Kovacs v. Cooper, 336 U.S. 77, 95 (1949); Bates v. Little Rock, 361 US. 516, 525 (1960); NAACP v. Alabama, 357 U.S. 449 (1958); McKay, "The Preference for Freedom”, 34 N.Y. U. L. Rev. 1182 (1959); Comment, "An Informer's Tale: Its Use in Judicial and Administrative Proceedings”, 63 Yale L. J. 206, 228 (1953).
81 304 U.S. 144, 152 n. 4 (1938).
82 For a summary of the different ways in which the “suspect” classification standard has been described, see Comment. “Equal Protection in the Urban Environment: The Right to Equal Municipal Services”, 46 Tul. L. Rev. 496, 508 n. 70 (1972).
83 The "rational basis” and “compelling state interest" tests have been variously described as the "old" or "standard” test and the "new" or "strict' test. For a further discussion of these tests sce Comment, "Equal Protection in the Urban Environment: The Right to Equal Municipal Services", 46 Tul L. Rev. 496, 497-99 (1972); Comment, “James V. Valtierra: Housing Discrimination by Referendum ?", 39 Univ. Chic. L. Rev. 115, 119–20 (1971).
84 394 U.S. 618, 638 (1969).
Among the criteria the Court has regarded as suspect are race, Boiling v. Sharpe (“Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionality suspect”); lineage, Hirabayashi v. United States (“Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality'') ; ** wealth, Harper v. Virginia Board of Elections (“ines drawn on the basis of wealth or property, like those of race . are traditionally disfavored"); $7 and, possibly, illegitimacy.88 Compare Levy v. Louisiana,so with Labine v. Vincent." In sum, the Court has regarded as "suspect" classifications those classifications that discriminate against an individual on the basis of factors over which he has no control.1
Included in the category of interests that the Court has regarded as fundamental are voting, 92 procreation, interstate travel,“4 marriage, political association, and the opportunity to earn a living. Some lower courts have classified education as a fundamental interest. 98
When a challenged classification involves a "fundamental interest", just as in the case of a “suspect” classification, the State's basis for the classification must be more than “rational”,89 the State has the burden of showing that it was
85 347 U.S. 497, 499 (1954). See also Korematsu V. United States, 323 U.S. 214, 216 (1944); Loving v. Virginia, 388 U.S. 1, 11 (1967) ; McLaughlin v. Florida, 379 U.S. 184 (1964). Cf. Sherbert v. Verner, 374 U.S. 398 (1963) where, in a due process context, the Court applied the compelling interest text to a classification related to religion.
86 320° Ū.S. 81, 100 (1943). See also Yick Wo V. Hopkins, 118 U.S. 356 (1885) ; Y 14 Cong. Eng. v. Trinidad, 271 U.S. 500 (1926) ; Hill v. T'exas, 316 U.S. 400 (1942); Hernandez v. Teras, 347 U.S. 475 (1954).
87 383 U.S. 663, 668 (1966). Harper has been called “the turning of America's conscience from the narrow problem of Negro rights to a wider recognition of the disadvantaged position of the poor of all races.” Cox, “Constitutional Adjudication and the Promotion of Human Rights" 80 Harv. L. Rev. 91, 180 (1966). Cf. Mr. Justice Jackson concurring in Edward v. California, 314 U.S. 160, 181 (1941). In McDonald v. Board of Election Comm., 394 U.S. 802 (1969) the Court declined to use the compelling interest test and noted that the classification at issue was not based on race or wealth,"two factors which would independently render a classification highly suspect.
Id. at 807 (emphasis added). See also Griffin v. Illinois, 351 U.S. 12 (1956) ; Burns v. Ohio, 360 U.S. 252 (1959); Smith v. Bennett, 365 U.S. 708 (1961); Douglas v. California, 372 U.S. 353 (1963) ; Anders v. California, 386 U.S. 738 (1967) : Roberts v. La Vallee, 389 U.S. 40 (1967) ; Williams v. Illinois, 399 U.S. 235 (1970) ; Southern Alameda Spanish Speaking Organization v. Union City, 424 F. 2d 291 (9th Cir. 1970). Cf. Mr. Justice White, concurring in Griswold v. Connecticut, 381 U.S. 479, 503 (1965).
88 Indicating the heightened levels of consciousness of recent years is the suggestion that sex classifications also be regarded as suspect. See Comment, “Are Sex-Based Classifications Constitutionally Suspect ?" 66 N.W. L. Rev. 481 (1971).
89 391 U.S. 68 (1968). 90 401 U.S. 532 (1971). 91 Id. at 552, note 19. In more general terms, the Court has suggested that legislation which falls more harshly upon a class that exercises little control over the political process should receive “strict scrutiny'. See, e.g., United States v. Carolene Products Co., 304 U.S. 144, 153 n. 4 (1938) where the Court noted that: “[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail operation of those political processes ordinarily to be relied upon to protect minorities, and, which may call for a correspondingly more searching judicial inquiry (citations omitted)." See also, Hobson v. Hansen, 269 F. Supp. 401, 507, 508 (D.D.C. 1967), aff'd. sub nom. Smuck v. Hobson, 408 F. 2d 175 (D.C. Cir. 1969).
92 See Reynolds v. Sims, 377 U.S. 533 (1964); Carrington v. Rash, 380 U.S. 89 (1965). 93 See Skinner v. Oklahoma, 316 U.S. 535 (1942). 04 See Shapiro v. Thompson, 394 U.S. 618 (1969).
95 See Griswold v. Connecticut, 381 U.S. 479 (1965) ; Loving v. Virginia, 388 U.S. 1, 12 (1967).
86 See Williams v. Rhodes, 393 U.S. 23 (1968). 97 See Truar v. Raich, 239 U.S. 33, 41 (1915). See also Sailer Inn Inc. v. Kirby, 5 Cal. 3d 1, 485 P. 2d 529, 59 Cal Rept. 329 (1971).
08 See Ordway v. Hargraves, 323 F. Supp. 1155 (D. Mass. 1971); Hosier v. Evans, 314 F. Supp. 316 (D. Virg. Is. 1970). Cf. Hobson V. Hansen, 269 F. Supp. 401, 508 (D.D.C. 1967). Contra Johnson v New York State Education Department, 449 F 20 871 (2d Cir. 1971). It also has been suggested that in certain circumstances particular types of municipal services might be regarded as fundamental rights. See Comment. "Equal Protection in the Urban Environment: The Right to Equal Municipal Services”, 46 Tui. L. Rev. 496, 516, 525 (1972).
99 Many of the cases involve both a “suspect" classification and a "fundamental interest" which interact with each other. The Court's analysis in such cases has been described as involving a “sliding scale”. “Under the 'sliding scale' approach, various classifications and interests are visualized as being on a gradient, with the standard of review becoming more demanding as the nature of the classifications or the value of the interests approaches the 'suspect' or 'fundamental levels. The suspect and fundamental qualities of the classification created and the interests regulated by a specific state action are evalnated and weighted together in determining the standard of judicial review to be applied." Note. “The Equal Protection Clause and Exclusionary Zoning After Valtierra and Dandridge,” 81 Yale L. J. 61, 71-72 (1971). See also “Developments in the Law : Equal Protection”. 82 Harv. L. Rev. 1065, 1020-21 (1969): Comment. “Equal Protection in the Urban Environment: The Right to Equal Municipal Services”, 40 Tul L. Rev. 496, 525 (1972).
without alternatives and had a “compelling” need to classify as it did.100 Summarizing this test, one commentator has stated :
“Application of the new equal protection doctrine involves close “judicial scrutiny" imposing upon the state a heavy burden of justification. Concomitantly, the Court has sometimes considered whether there are alternatives available to the state by which it can achieve its legitimate objective, the state may not employ a method which, though rationally related to that objective, more substantially infringes upon protected rights (footnotes omitted).
In the school finance cases, the courts have considered the "suspect" classification, 'fundamental interests” categorizations and have employed the “rational basis”, “compelling state interest" tests. We now turn to a consideration of those cases. B. The Initial Cases
Attacks on State school financing schemes proved unsuccessful in McInnis v. Shapiro and Burrus v. Wilkerson.103
McInnis was a suit brought by students attending school in school districts within Cook County. They attacked on Fourteenth Amendment grounds various state statutes dealing with school financing. They argued that the statutes permitted wide variations in the expenditures per student from district to district, thereby providing some students with a good education and depriving others, who have equal or greater educational needs.
Per pupil expenditures in Illinois varied between $480 and $1,000. The State guaranteed a foundation level of $400. The State contribution was made up of a flat grant for each pupil and an equalization grant awarded to each district which levied a minimum property tax. Where the local tax revenue per pupil generated by the minimum rate, plus the flat grant, was less than $400, the State provided the difference as an equalization grant. Districts taxing above the minimum rate were not penalized by having the additional revenue considered before determination of the equalization rate. Thus, all districts, regardless of their wealth, received a flat grant. The equalization formula helped bring poorer districts up to the $400 minimum level but did not close the gap between rich and poor districts that resulted from the same tax rate being able to produce vastly greater income in the rich districts. In fact, the court found that districts with lower property valuations usually levy higher rates.
A three-judge court found that the Illinois school financing scheme was designed "to allow individual localities to determine their own tax burdens according to the importance which they place on public schools.” 104 The court, relying on those Supreme Court cases which shield State legislative enactments from invalidation unless they are “wholly irrelevant to the achievements of the State's objective”, upheld the Illinois system."
A more careful analysis, however would have revealed that the State's objective is furthered by the method of financing schools in Illinois. The tax burdens of individual localities do not directly reflect interest in education. As the court notes, "[t]hough districts with lower tax property valuations usually levy higher taxes, there is a limit to the amount of money which they can raise especially since they are limited by maximum indebtedness and tax rates.' Thus, tax burdens are controlled by property valuations and state imposed limitations on tax rates. A rich district can tax at a low rate and raise adequate funds to finance its schools. A poor district must impose a burdensome tax rate to obtain sufficient funds and, even then, it is limited by restraints imposed on its tax rate and indebtedness. Accordingly, the court might just as well have concluded that the manner in which school funds are distributed in Illinois is "wholly irrelevant to the achievement of the State's objective” of allowing "individual localities to determine their own tax burden according to the impor. tance which they place upon public schools”.
100 See Mr. Justice H rlan's criticism of the “compelling nterest” doctrine in Shapiro v. Thompson, 394 U.S. 618, 658-63 (1969).
101 See Comment, "James v. Valtierra : Housing Discrimination by Referendum ?", 39 Univ. of Chic. L. Rev. 115, 120 (1971).
102 293 F. Supp. 327 (N.D. ill. 1968), aff’d. mem. sub. nom. McInnis v. Ogilvie, 394 U.S. 322 (1969).
103 310 F. Supp. 572 (W.D. Va. 1969), aff’d. mem. 397 U.S. 44 (1970). 104 McInnis v. Shapiro op. cit. supra note at 333.
105 I d. at 332, quoting from McGowan v. Maryland, 366 U.S. 420, 425–26 (1961). The plaintiffs had urged that the importance of education required that the court more closely scrutinize the State regulatory scheme than is normally done when State statutes in other areas are attacked. McInnis v. Shapiro, supra at 331.
106 1d. at 331.