But the court's opinion does not dwell extensively on the mechanics of the Illinois financing scheme. More attention is paid to the remedy sought by the plaintiffs. The court notes that the plaintiffs' original complaint sought an order requiring the "defendants to submit ** * a plan to raise and apportion all monies *** in such a manner that such funds available to the school districts wherein the class of plaintiffs attend school will * * assure that plaintiff children receive the same educational opportunity as the children in any other district * * * 107 Similarly, the court observed:

*

"While the complaining students repeatedly emphasize the importance of pupils' 'educational needs,' they do not offer a definition of this nebulous concept. Presumably, 'educational need' is a conclusory term, reflecting the interaction of several factors such as the quality of teachers, the students' potential, prior education, environmental and parental upbringing, and the school's physical plant. Evaluation of these variables necessarily requires detailed research and study, with concomitant decentralization so each school and pupil may be individually evaluated." 108

Obviously, the court regarded the nature of the relief requested as an insurmountable obstacle. This is reflected in the court's reasons for dismissing the case: (1) the Fourteenth Amendment does not require that public school expenditures be made only on the basis of pupils' educational needs, and (2) the lack of judicially manageable standards make the controversy nonjusticiable.10 The District Court's decision was appealed directly to the Supreme Court.1 and its judgment was affirmed on March 24, 1969."

111

110

The Burrus case atacked Virginia's scheme for the distribution of funds for public education. The plaintiffs, resident parents and school children of Bath County, claimed that their rights to equal protection were violated by the system of finance. They further alleged that they were denied "educational opportunities substantially equal to those enjoyed by children atending public schools in many other districts of the State," that the State law failed to take into account "the variety of educational needs" 113 of the different counties and cities. and that the law failed to make provision for variations in expenses for public education from district to district.1114

112

115

The court rejected the plaintiffs' argument. If found that the differences existing among districts were not caused by the State, and the cities and counties were receiving funds under a "uniform and consistent plan". What was involved the court suggested, was a local problem. "Truth is", said the court "the inequalities suffered by the school children of Bath are due to the inability of the county to obtain locally, the money needed to be added to the State contribution to raise the educational provision to the level of that of the other counties or cities." 118 This, the court concluded, did not involve discrimination by the State. The court also rested its conclusion on the indefiniteness of the relief sought by the plaintiffs and rejected the suggestion that a court could fashion a remedy based on educational needs. The court said:

"Actually, the plaintiffs seek to obtain allocations of State funds among the cities and counties so that pupils in each of them will enjoy the same educational opportunities. This certainly is a worthy aim, commendable beyond measure. However, the courts have neither the knowledge, nor the means, nor the power

107 Id. at 335 n. 34. See also Coons, Clune and Sugarman, "Educational Opportunity: A Workable Constitutional Test for State Financial Structures", 57 Cal. L. Rev. 305, 339-40 (1969) which notes that in McInnis v. Ogilvie, before the Supreme Court it was argued that the Illinois financing scheme denied equal protection in the following respects: (a) classifications upon which students will receive the benefits of a certain level of per pupil educational expenditures are not related to the educational neds of these students and are therefore arbitrary, capricious and unreasonable; (b) the method of financing public education fails to consider . . (ii) the added costs necessaray to educate those children from culturally and economically deprived areas (iii) the variety of educational needs of the several public school districts of the State of Illinois . (c) the method of financing, public education fails to provide to each child an equal opportunity for an education

108 McInnis V. Shapiro, op. cit. supra note at 329 n. 4.

109 Id. at 329.

110 Since the McInnis case attacked the constitutionality of state legislation, it was heard by a three-judge federal court. 28 U.S.C. §§ 2281, 2284. The Supreme Court is required to rule on appeals from the decisions of such courts. 28 U.S.C. 1253.

111 394 U.S. 322 (1969). For a discussion of the significance of the Supreme Court: affirmance, see Coons, Clune and Sugarman op. cit. supra note at 308-309, 344.

112 Burruss v. Wilkerson, 310 F. Supp. 572, 573 (W.D. Va. 1969).

113 Ibid.

114 Ibid.

115 Id. at 574.

110 Ibid.

to tailor public moneys to fit the varying needs of these students throughout the State." 117

119

The court relied on the McInnis case which is found "scarcely distinguishable" from the case before it.118 This decision also was affirmed by the Supreme Court.1 The courts were more receptive to an attack on a school finance system in Hargrave v. McKinney.' 120 This case involved Florida's school financing methods. At issue was a Florida statute which provided that any county that imposes upon itself more than a ten mil ad valorem property tax for educational purposes would not be eligible to receive State funds for the support of its public education system. The statute was attacked as violating the equal protection clause "... because the state limitations is fixed by reference to a standard which relates solely to the amount of property in the county, not to the educational needs of the county. Counties with high property values in relation to their school population are authorized by the state to tax themselves far more in relation to their educational needs than counties with low property values in relation to their school population."

121

122

The United States Court of Appeals for the Fifth Circuit ruled that the district court had improperly dismissed the case and that the constitutional quesions raised were sufficiently substantial to warrant the convening of a three-judge district court. The court noted the "novelty of the constitutional argument" advanced by the plaintiff but concluded that it merited further consideration by a three-judge court. The court said:

"The equal protection argument advanced by plaintiffs is the crux of the case. Noting that lines drawn on wealth are suspect [citing McDonald v. Board of Election, 394 U. S. 802 (1969); Harper v. Virginia Board of Elections, 383 U. S. 663 (1966); Douglas v. California, 372 U. S. 353 (1963); Griffin v. Illinois, 351 U. S. 12 (1956] and that we are dealing with interests which may well be deemed fundamental, [citing Brown v. Board of Education, 347 U. S. 483 (1954); Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967)] we cannot say that there is no reasonably arguable theory of equal protection which would support a decision in favor of the plaintiffs." 123

On remand, the three-judge Federal court concluded that there was no rational basis for the Florida statute.124 It noted that the statute had resulted in a reduction of over $50,000,000 in local taxes for educational purposes in 24 counties that had reduced their millage to the 10 mill limit in the 1968-69 school year. The effect of the Florida statute was to tell a county that it could not raise its taxes to improve education even if that is what the voters wanted. The State contended, however, that "the difference in dollars available does not necessarily produce a difference in the quality of education." The court labeled this contention “unreal" and noted the disparity created when Charlotte County, using the 10 mill limit may raise $725 per pupil while Bradford County, using the same limit, only could raise $52. The court said: "What apparently is arcane to the defendants is lucid to us--that the Act prevents poor counties from providing from their own taxes the same support for public education which the wealthy counties are able to provide." [emphasis in original]

125

The court concluded that this distinction did not have a rationale basis and could not withstand attack under the Fourteenth Amendment. "We have searched in vain", said the court, "for some legitimate state end for the discriminatory treatment imposed by the Act." 126 Since the court struck down the Florida statute for failing to be based on rational distinctions, it concluded that it did not have to consider whether education was "a basic fundamental right" which could be impinged upon-even for rational reasons-only if there were some "compelling state interest" 127

117 Ibid.

118 Ibid. Cf. Shepheard v. Godwin, 280 F. Supp. 869 (E.D. Va. 1968) where a three-judge court held that a Virginia statute which provided that children of members of the armed forces, or other employees of the United States, living in an impacted area or on or off Federal property, would not be counted for the purpose of distributing state educational aid to school districts violated the equal protection clause.

119 397 U.S. 44 (1970).

120 413 F. 2d 320 (5th Cir. 1969), on remand, Hargrave v. Kirk, 313 F. Supp. 944 (M.D. Fla. 1970), vacated sub noh. Askew v. Hargrave, 401 U. S. 476 (1971).

121 Hargrave v. McKinney, op. cit. supra note 18 at 323. The complaint cited as an example the fact that the statute under attack permitted Charlotte County to raise by its own taxes $725 per student while Bradford County is permitted to raise only $52 per student.

122 Id. at 344.

123 Ibid.

124 Hargrave v. Kirk, 313 F. Supp. 944, 948 (M.D. Fla. 1970).

125 Id. at 947.

120 Id. at 948.

127 Ibid.

The court recognized the relevance of the McInnis and Burruss cases but distinguished them because here the local boards were restricted in determining the extent of their tax burden for education while in the aforementioned cases this power was delegated to school districts. The court also noted that the relief requested in McInnis required an affirmative calculation of needs while "In contrast, in the instant case, the plaintiffs' argument simply stated is that the Equal Protection Clause forbids a state from allocating authority to tax by reference to a formula based on wealth. Unlike the broad relief sought in McInnis, the remedy here is simple-an injunction against state officials..." 128

C. Serrano v. Priest

129

On August 30, 1971, the Supreme Court of California decided Serrano v. Priest,1 a decision that is certain to become a landmark school finance case. The California court characterized its decision as furthering "the cherished ideas of American education that in a democratic society free public schools shall make available to all children equally the abundant gifts of earning.' 180 The court summarized its holding in these words:

"We are called upon to determine whether the California public school financing system, with its substantial dependence on local property taxes and resultant wide disparities in school revenues, violates the equal protection clause of the Fourteenth Amendment. We have determined that the funding scheme invidiously discriminates against the poor because it makes the quality of a child's education a function of the wealth of his parents and neighbors. Recognizing as we must that the right to an education in our public schools is a fundamental interest which cannot be conditioned on wealth, we can discern no compelling state purpose necessitating the present method of financing. We have concluded, therefore, that such a system cannot withstand constitutional challenge and must fall before the equal protection clause.'

,, 131

1. The California school financing scheme

The Serrano suit was brought by Los Angeles County school children and their parents. The children claimed that the state financing scheme created substantial disparities in the quality and extent of educational opportunities offered throughout the State. The parents claimed that as a result of the financing method they are required to pay a higher rate than taxpayers in other districts in order to obtain the same or lesser educational opportunities for their children. It was contended that this discrimination violated the equal protection clause on several grounds."

132

In California, over 90 percent of school funds come from two sources: local district taxes on real property (55.7%) and the State School Fund (35.5%). The amount of local taxes a district can raise depends upon its tax base-i.e., the assessed valuation of property within its borders-and the rate of taxation within the district. In 1969-70, for example, the assessed valuation per pupil ranged from a low of $103 to a high of $952,156. Districts have great leeway in setting tax rates.

State aid is distributed under a foundation program similar to the one in Illinois, described in the McInnis case. 133 The California program assures that each district will receive annually, from state or local funds, $355 for each elementary school pupil and $488 for each high school pupil. Every district receives “basic state aid" of $125 per pupil, regardless of the relative wealth

128 Id. at 949.

123 5 Cal. 3d 584, 96 Cal. Rptr. 601, 487 Pac. 2d 1241 (1971).

1305 Cal. 3d at 618.

131 Id. at 589.

132 Among the equal protection violations claimed were the following: (a) quality of education is a function of wealth of parents and neighbors as measured by tax bases; (b) quality of education is a function of geography; (c) failure to take into account varied educational needs; (d) children in some circumstances not provided with equal educational resources; (e) use of "school district" as a unit of differential allocation of funds is not reasonably related to legislative purpose to provide equal educational opportunities; (f) "A disproportionate number of school children who are black children, children with Spanish surnames, children belonging to other minority groups reside in school districts in which a relatively inferior educational opportunity is provided." Id. at 590 n. 1.

133 See text accompanying note supra.

of the district. "Equalization aid" is provided to a district if its local tax levy— computed at a hypothetical tax rate-plus its basic grant is less than the foundation minimum. Equalization aid guarantees to poorer districts a basic minimum revenue, while wealthier districts are ineligible for such assistance. Despite State aid, wide differentials remain among districts. For example, in the 1968-69 school year, the Baldwin Park Unified School District, with assessed valuation per child of $3,706, spent $577.49 per pupil; the Pasadena School District-assessed valuation per child of $13,706-spent $840.19 and the Beverly Hills School District-assessed valuation $50,885-spent $1,231.72 per child.

Basic state aid, which is distributed on a uniform per pupil basis to all schools irrespective of wealth, widens the gap between rich and poor districts. Beverly Hills as well as Baldwin Park, receives $125 from the State for each of its students.

2. The Fourteenth Amendment Violation

In testing the California school finance structure against the equal protection clause, the California court said it would follow the two-level test used by the Supreme Court. Economic regulations have been presumed constitutional; all that is required is that the distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate State purpose. But in cases involving “suspect classifications" or touching on "fundamental interests", legislative classifications are subject to a strict scrutiny. In this area, the State has the burden to show that it has a compelling interest which justifies the law and that the distinctions drawn by the law are necessary to further its purpose.

a. Wealth as a suspect classification.-Applying this test, the California court first considered whether it was appropriate to regard wealth as a "suspect classification." It answered affirmatively,134 relying principally on the Supreme Court decisions in Harper v. Virginia 135 and McDonald v. Board of Election.136 The California court found it "irrefutable" that the state financing system classifies on the basis of wealth. The court conceded that the amount of money raised locally is also a function of the tax rate and, consequently, poor districts could attempt to equalize disparities in tax basis by taxing at higher rates. Practically, however, poor districts never could levy at a rate sufficient to compete with more affluent districts. For example, Baldwin Park citizens, who paid a school tax of $5.48 per $100 of assessed valuation in 1968-69, were able to spend less than half as much on education as Beverly Hills residents, who were taxed only $2.38 per $100. "Thus," the California court said, "affluent districts can have their cake and eat it too: they can provide a high quality education for their children while paying lower taxes. Poor districts, by contrast, have no cake at all." 137

The court rejected the defendants' argument that classification by wealth is constitutional so long as the wealth is that of the district, not the individual. The court said: "We think that discrimination on the basis of district wealth is equally invalid. The commercial and industrial property which augments a district's tax base is distributed unevenly throughout the state. To allot more educational dollars to the children of one district than to those of another merely because of the fortuitous presence of such property is to make the quality of a child's education dependent upon the location of private commercial and industrial establishments. [footnote omitted] Surely, this is to rely on the most irrelevant of factors as the basis for educational financing.1

138

The defendants also argued that different levels of educational expenditure do not affect the quality of education. The plaintiff's complaint, however, alleged that expenditures did affect the quality of education. Because of the procedural pos

134 Serrano v. Priest op. cit. supra note at 598.

135 383 U.S. 663, 668 (1966).

136 394 U.S. 802, 807 (1969).

187 Serrano v. Priest, op. cit. supra note at 600. 138 Id. at 601.

83-453-72-pt. 3

ture of the case, the California Supreme Court accepted the plaintiff's allegation as true.13

Finally, the defendants argued that whatever discrimination might exist in California was de facto discrimination i.e., it resulted from factors over which the State had no control or responsibility. The court, summarily rejecting this contention, noted that ".. we find the case unusual in the extent to which governmental action is the cause of the wealth classifications." 140 The court cited with approval this description of State involvement in school financing inequalities:

[The states] have determined that there will be public education, collectively financed out of general taxes; they have determined that the collective financing will not rest mainly on a state-wide tax base, but will be largely decentralized to districts; they have composed the district boundaries, thereby determining wealth distribution among districts; in so doing, they have not only sorted education-consuming households into groups of widely varying average wealth, but they have sorted non-school-using taxpayershouseholds and others-quite unequally among districts; and they have made education compulsory."

141

139 Id. at 591, 601 n. 16. The court noted that there is considerable controversy among educators over the relative impact of educational spending and environmental influences on school achievement. For an excellent summary of the studies on this question, see Schoettle, op. cit. supra note at 1378-1388. The court also noted that other courts had considered contentions similar to the defendants and has rejected them. Serrano v. Priest, op. cit. supra note at 601 n. 16. In addition to the cases and authorities cited by the court, see Van Dusartz v. Hatfield, 334 F. Supp. 870, 874 (D. Minn. 1971): Robinson v. Cahill, No. L-18704-69, pp. 37-39 (Super Ct. N. J. 1971): Coleman, "A Brief Summary of the Coleman Report", Equal Educational Opportunity 253, 259 (1969); Coons, Clune and Sugarman, Private Wealth and Public Education 25-33 (1970); Bowles, "Towards Equality of Educational Opportunity", Equal Educational Opportunity 115 (1969); Testimony of David Selden, Equal Educational Opportunity Hearings pt. 16B, at 6727: Advisory Committee on Intergovernmental Relations, State Aid to Local Government 44 (1969). A recent study by a group of researchers at Harvard University headed by Frederick Mosteller and Daniel P. Moynihan reaffirms the central findings of the Office of Education's 1966 report, Equality of Educational Opportunity-known as the Coleman Report-that academic achievement depends more on family background than what happens in the classroom. Washington Post, March 12, 1972 § A, at 1, col. 5. "The new study suggests that the best way to deal with the educational problems of poor children-black and white-may thus be to improve the jobs and incomes of their families. Neither racial integration nor increased spending on schools has much effect, the report concludes, on the educational performance of lower-class children-or on that of any others." Ibid. Christopher Jencks, one of the authors of the report, contends that "the least promising approach to raising achievement is to raise expenditures, since the date gives little evidence that any widely used school policy or resource has an appreciable effect on achievement scores." Id. at 14, col. 2. Cf. Bradley v. The School Board of the City of Richmond, C. A. No. 3353 (E. D. Vir. 1972) where the court found that schools attended by a disproportionate number of black students are perceived as inferior by the pupils attending them. Id. at 23. The court also cited evidence that "self-perception is affected by a pupil's notion of how he is being dealt with by the persons in power" (Id. at 282) and that "teachers' conceptions of the schools in which they hold classes are affected by the racial and economic status of their schools. There is a 'much stronger tendency toward a negative view of school and students in the mostly black and depressed schools than in the mostly white and advantaged schools.'" (emphasis added) Id. at 283. Perhaps this suggests that students who attend physically inferior schools develop unfavorable self-pereceptions and that teachers who teach in such schools have low expectations of their students. See also Berke and Kelly, "The Financial Aspects of Equality of Educational Opportunity" op. cit. supra note at 39. ". vinced that while money alone will not solve the crisis in educational quality lessening . we are firmly conthe resources available to educators is even less effective in improving education. In short, while more money by itself is not the sole answer to improving education available to all Americans, it seems to be far more effective than whatever factor may be considered second best. For money buys smaller classes, improved teaching devices, experimentation, new schools to achieve integration, counseling services or near-clinical personnel usage, or whatever other techniques research, development and practice find to be most promising. But even aside from the question of educational effectiveness, we have little patience with those who ask us to prove, as a condition precedent to reform, that achieving greater equity in the raising and the distribution of revenues will result in improved performance in the schools. For the end result of throwing roadblocks in the way of change is to support the maintenance of the system of educational finance we have described in this report, à system which regularly provides the most lavish educational services to those who have the highest incomes, live in the wealthiest communities, and are of majority ethnic status. In our eyes, this situation is the very definition of inequality of educational opportunity, For a Nation which has aspirations toward achieving an educated, humane, prosperous, and democratic society, reversing that inequitable pattern of educational resource distribution must be at least as high an educational priority as the development of new and more effective ways to help all children to learn."

140 Serrano v. Priest, op. cit. supra note at 603.

141 Id. at 603 n. 19, quoting from Michelman, "The Supreme Court, 1968 Term, Foreword: On Protecting the Poor Through the Fourteenth Amendment", 83 Harv. L. Rev. 7, 50 48 (1969). For a further discussion of the responsibility of the state toward public education see. 1 U. S. Commission on Civil Rights. Racial Isolation in the Public Schools 260-261 (1967); Kirp, op cit. supra note at 1964-65; Silard and White, op. cit. supra note at 8-9 Robinson v. Cahill, op. cit. supra note at 67; Reynolds v. Sims, 377 U. S. 533, 575 (1964). Cooper v. Aaron, 358 U S. 1, 16-17 (1958): Bradley v. The School Board of the City of Richmond, Virginia, C. A. No. 3353 (E. D. Vir. 1972).