b. Education as a fundamental interest.-The California court held that not only was the discrimination in this case related to a "suspect classification", i.e., wealth, but it also encroached upon a "fundamental interest" i.e., education. The court recognized that there was no direct authority supporting the arugment that education is a fundamental interest which may not be conditioned on wealth, although there are suggestions to that effect in some court opinions.' 142 Education, however, plays an indispensable role in the modern industrial state since first, education is a major determinant of an individual's chances for economic and social success in our competitive society; second, education is a unique influence on a child's development as a citizen and his participation in political and community life . . . education is the lifeline of both the individual and society.1 143 145 In many respects, the court found, education may have greater social significance and a more far ranging impact than the rights of defendants in criminal cases and the right to vote-two "fundamental interests" which the Supreme Court already has protected against discrimination based on wealth.144 "We are convinced", the court concluded, "that the distinctive and priceless function of education in our society warrants, indeed compels, our treating it as a 'fundamental interest'." c. The absence of a compelling State interest.-The State argued that despite the discriminations involved in the California school financing system, the structure was necessary to achieve a compelling State interest, i.e., "to strengthen and encourage local responsibility for control of public education." 146 The court disagreed. First, no matter how public education is financed, it still would be possible to leave decision-making over school policy in the hands of local districts. 147 Second, local fiscal control is an illusion when, as in California, the assessed valuation within a district's boundaries is a major determinant of how much it can spend on schools; in fact, the system deprives less wealthy districts of local fiscal control.' Accordingly, the court concluded: 148 We find that such financing as presently constituted is not necessary to the attainment of any compelling state interest. Since it does not withstand the requisite "strict scrutiny," it denies to the plaintiffs and others similarly situated the equal protection of the laws.1 149 Nor did the court agree that its holding was barred by the Supreme Court's summary affirmances in the McInnis and Burruss cases. 150 The court extensively analyzed those cases and distinguished them largely on the grounds that in Serrano the court was being asked to invalidate discrimination on the basis of wealth while in McInnis and Burruss "plaintiffs repeatedly emphasized ‘educational needs' as the proper standard for measuring school financing against the equal protection clause." 151 D. Other Recent Cases 1. Minnesota's system of financing public education-structurally indistinguishable from the California system-was challenged in Van Dusartz v. Hatfield.12 The court, resting squarely on Serrano, reached a similar conclusion. Describing the financing system in Minnesota, the court said : To sum up the basic structure, the rich districts may and do enjoy lower tax rates and higher spending. A district with $20,000 assessed valuation per pupil and a 40 mill tax rate on local property would be able to spend $941 per pupil; to match that level of spending the district with $5,000 taxable wealth would have to tax itself at more than three times that rate, or 127.4 mills." 153 142 Serrano v. Priest, op. cit. supra note at 604 n. 22. 143 Id. at 605. 144 The court elaborates on this proposition. Id. at 607-609. 145 Id. at 608-609. For further discussion of education as a "fundamental interest" see, e.g., Kirp op. cit. supra note at 140; Hobson v. Hansen 269 F. Supp. 401 508 (D.D.C. 1967). 146 Serrano v. Priest, op. cit. supra note at 610. 147 Ibid. 148 Id. at 611. 149 Id. at 614-615. The court also rejected the State's contention that the Constitution did not require territorial uniformity of State programs and that if wealth could not determine the quality of public education, the same rule must be applied to all taxsupported public services. Id. at 611-614. 150 See discussion of McInnis and Burruss, supra. 151 Serrano v. Priest, op. cit. supra note at 617. 152 334 F. Supp. 870 (D. Minn. 1971). 153 Id. at 873. The court recognized that there were differences of opinion among educators over the degree to which money counts but quoted from an affidavit submitted by the plaintiffs that concluded that in Minnesota : The districts having the lowest per pupil expenditure, which are generally the poorest districts in terms of assessed valuation per-pupil unit, offer an education that is inferior to the districts having the highest per-pupil expenditures." 154 The court's analysis of the constitutional questions presented to it proceeded along the same lines as that in Serrano: is a "fundamental interest" involved? has the state used a "suspect classification"? is there a "compelling state interest"? The court observed: education... is to be sharply distinguished from most other benefits and services, provided by government. It is not the "importance" of an asserted interest which alone renders it specially protected. Education has a unique impact on the mind, personality, and future role of the individual child. It is basic to the functioning of a free society and thereby evokes special judicial solicitude.155 This "fundamental interest," the court concluded is invidiously affected by a wealth classification and: the objection to classification by wealth is in this case aggravated by the fact that the variations in wealth are State created. This is not the simple instance in which a poor man is injured by his lack of funds. Here the poverty is that of a governmental unit that the State itself has defined and commissioned. The heaviest burdens of this system surely fall de facto upon those families residing in poor districts who cannot escape to private schools, but this effect only magnifies the odiousness of the explicit discrimination by the law itself against all children living in relatively poor districts.158 Since this discrimination was not compelled by any state interest of sufficient magnitude, it was invalid under the Fourteenth Amendment. This did not mean, said the court, that the only valid system was one involving uniformity of expenditure for each pupil in Minnesota. All that fiscal neutrality requires is that educational benefits not be distributed according to wealth; the state may adopt one of many optional funding systems which do not violate the equal protection clause,157 2. In Texas, a three-judge Federal court, in Rodriguez v. San Antonio Independent School District,158 relied on Serrano in finding that Texas' method of financing public elementary and secondary education violated the equal protection clause. The analysis in this Report focused on the manner in which the Texas school financing system discriminates against Mexican Americans.159 Although the complaint in the Rodriguez case, in addition to alleging that the Texas school finance system discriminated on the basis of wealth, also alleged that it discriminated against Mexican Americans 160-and all the plaintiffs in the case were Mexican Americans-the court's decision rests solely on wealth discrimination. In Texas, there happens to be a close correlation between financial discrimination and ethnic and racial discrimination. A study of the Texas finance system submitted in evidence in the Rodriguez case concluded that: Racial discrimination is also readily apparent in Texas educational finance. There is a consistent pattern of higher quality education in districts with higher proportions of whites, and lower quality education in districts with lower proportions of whites. In short, the more Negroes and Mexican Americans in the school population of a district, the lower its revenues for education.10 161 Perhaps Texas is unique in this respect." 162 For this reason, the Rodriguez court may well have decided to base its decision on wealth discrimination because that was a more universally existing problem, because it could find support in the Serrano and Van Dusartz decisions and because some commentators have 154 Id. at 874. 155 Id. at 875. 156 Id. at 875-77. 157 Id. at 876-77. 158 C. A. No. 68-175-5A (W.D. Tex. 1971). 159 See Findings, supra pp. 180 See Appendix F infra. 161 See affidavit of Joel S. Berke, p. 4. 162 See discussion accompanying text at notes supra. cautioned against basing the school finance cases on racial and ethnic discrimination.163 165 The court, in Rodriguez, notes these financial disparities. A survey of 110 school districts throughout the State showed that while the ten districts with a market value of taxable property per pupil above $100,000 enjoyed an equalized tax rate per $100 of only $.31, the poorest four districts, with less than $10,000 in property per pupil, were burdened with a rate of $.70.101 The rich low-rate districts, however, raised $585 per pupil while the poor high-rate districts collected only $60 per pupil. The seven San Antonio school districts followed a similar pattern. Market value per student varied from a low of $5,429 in Edgewood to a high of $45,095 in Alamo Heights. Taxes, as a percent of the property's market value, were the highest in Edgewood and the lowest in Alamo Heights. Yet Edgewood produced only $21 per pupil while Alamo Heights garnered $307 per pupil.18 The court, employing the same constitutional analysis as that followed in Serrano and Van Dusartz, invalidated the Texas system. 167 Disagreeing with the defendants that the plaintiffs were calling for "socialized education", the court said: "Education like the postal service has been socialized, or publicly financed and operated, almost from its origin. The type of socialized education, not the question of its existence, is the only matter currently in dispute." 168 The court also rejected the defendant's argument that Federal assistance had an equalizing effect. Factually, this was not so but, more importantly, [p]erformance of its constitutional obligations must be judged by the State's own behavior, not by the actions of the Federal government." 1 The court ordered Texas to develop a new educational financing system and gave it two years to do so. 170 171 3. New Jersey's school finance system was challenged in Robinson v. Cahill." In a lengthy opinion, the court analyzed the school finance scheme in effect at the time the complaint was filed as well as the "State School Incentive Equalization Aid Law" (known as the Bateman Act) enacted October 26, 1970 and effective July 1, 1971. The later law was the product of extensive study and was intended to provide an equitable system of State financing.' 172 The court, however, employing the Serrano analyses, concluded that: The present system of financing public elementary and secondary schools in New Jersey violates the requirements for equality contained in the State and Federal constitutions. The system discriminates against pupils in districts with low real property wealth, and it discriminates against taxpayers by imposing unequal burdens for a common State purpose." 173 The New Jersey's courts opinion is too intricate for thorough analysis here. Some of its highlights, however, merit note. The court found a consistent pattern of financing throughout the State: In most cases, rich districts spend more money per pupil than poor districts; rich districts spend more money on teachers' salaries per pupil; rich districts have more teachers and more professional staff per pupil; and rich districts manage this with tax rates that are lower than poor districts, despite "equalizing" aid.174 For example, Newark, had a school tax rate of $3.69 as compared with the $1.43 rate in Millburn. Yet Millburn has more teachers per pupil, spends more for teachers' salaries per pupil ($685 to $454) and has more professional staff per pupil (61 to 53)." 175 Valuable commercial and industrial property was unequally distributed throughout the State. 112 municipalities with 11 percent of the State's population had commercial and industrial property almost equal in value to that 163 Coons, Clune and Sugarman, Private Wealth and Public Education 356-58, 403-409 (1970). 184 Rodriguez v. San Antonio Independent School District, op. cit. supra note at 2 (mem. op.). 165 Ibid. At this point, the court noted that "Those districts most rich in property also have the highest median family income and the lowest percentage of minority pupils, while the poor property districts are poor in income and predominantly minority in composition.” 166 Id. at 3. 167 Id. at pp. 3-6. 168 Id. at 6. 169 Id. at 7. 17 Id. at 8-9. 171 Robinson v. Cahill, No. L-18704-69 (Super. Ct. N. J. 1971). 172 Id. at n. 4. Among other things, the formula in the Bateman Act provides greater minimum aid to districts with a high proportion of children receiving AFDC assistance. 173 Id. at p. 75. 174 Id. at 17-18. 175 Id. at 20. 176 possessed by a group of municipalities containing 39 percent of the State's popu- 178 The court extensively analyzed the relationship between dollar expenditures and quality of education and concluded that "there is a correlation between dollar expenditures and input (such as teachers and facilities), and between input and output (results).' " 179 Although the court praised the improvements the Bateman Act made on the school financing system-such as giving special weight to the number of children in a district receiving aid to dependent children assistance-it noted that such factors as "municipal and county overload" still were not taken into account. Said the court: Poor districts have other competing needs for local revenue. The evidence shows that poorer districts spend a smaller proportion of their total revenues for school purposes. The demand for municipal services tends to diminish further the school revenue-raising power of poor districts. Another general disadvantage of poor districts is the fact that property taxes are regressive; they impose burdens in inverse proportion to ability to pay. This is because poor people spend a larger portion of their income for housing.1 The court's order permits the continued operation of the school system and existing tax laws and all actions taken under them. To allow time for legislative action, the court's order is not to be effective until January 1, 1974.181 180 The New Jersey opinion illustrates the varied factors that must be taken into account in order to develop an equitable school financing formula and the difficulty of developing such a formula even where a State makes a good faith effort to do so. 185 4. An Arizona court followed the Serrano trend in Hollins v. Shofstall.182 The court found the Serrano and Van Dusartz rulings to be "highly persuasive" 183 but appeared to base its opinion on the discrimination suffered by taxpayers rather than by school children. The court found that the amount of money expended per student could be highly misleading 184 and also noted the various devices that were employed to equalize disparities among districts which conceivably could avoid an equal protection violation.18 What was persuasive to the court was a comparison of "the amounts per pupil in average daily attendance raised by district taxation to pay for costs of operation and maintenance in different districts and the district tax rates necessary to raise such funds." 180 The court noted that in 1970-71 Morenci Elementary School District's taxes produced $249.64 per pupil in average daily attendance at a tax rate of $.67. Roosevelt Elementary School District taxed at a rate of $7.14 but produced only $99.04 per pupil. Thus, "[a]lthough Morenci's tax rate was only about one-tenth 170 Id. at 23. 177 Ibid. 179 Id. at 27. 179 Id. at 30. The court cited testimony of Professor Henry S. Dyer of the Educational Testing Service of Princeton, New Jersey that pupil achievement is positively related to per pupil expenditure for instructional purposes. Id. at 37. 180 Id. at 66. 181 Id. at 75-76. 182 No. C-253652 (Super. Ct. Maricopa Cty. 1971). 183 Id. at 3 (mem. op.). 184 The court refers to one of plaintiffs' exhibits which shows that Roosevelt Elementary School District spends $606.86 per pupil while the ten districts in the State which spend the most per pupil spend between $2,370.20 to $1,681.32. The court finds it erroneous to presume that the ten districts provide a superior quality of education "when it is considered that all ten are rural school districts with the highest average daily attendance being 75, the lowest 2, the median 12 and the average 22, while average daily attendance at Roosevelt for 1970-71 was 9,700. " Id. at 4-5. the amounts a district receives from state financial assistance, state equalization aid and federal programs will influence the quality of its educational programs and the amount which must be raised by district taxation." Id. at 4. Cf. Rodriguez v. San Antonio Independent School District op. cit. supra note and text accompanying not where the court concludes that the extent of federal assistance is irrelevant to the state's obligation of equal treatment. 1854 186 Hollins v. Shofstall, op. cit. supra note at 5. of Roosevelt's, it produced about two and one-half times more revenue per ADA child." 187 The Arizona Superior Court concluded: the funds available in any given school district for public education are to a highly significant extent a function of the taxable wealth within the district. Arizona's school financing system imposes grossly disparate tax burden on taxpayers in its different school districts. Taxpayers in a school district poor in taxable wealth are forced to make a substantially greater effort to provide substantially less monies for the operation of their schools in comparison with what is required of taxpayers in a district rich in taxable wealth. (Emphasis added) 188 5. One aberration from the Serrano trend is the decision of the New York State Supreme Court in Spano v. Board of Education of Lakeland Central School District #1.189 The court there concluded that it was bound by the McInnis and Burruss decisions 190 and took exception to the reasoning of the California court in Serrano in distinguishing those decisions.191 In addition, the court feared that if it were to allow this case to go to trial,192 it would "render a grievous, if not irreparable disservice to public school education." 193 The court's concern was based on assertions by counsel for the School District that as a result of the filing of this case the market for its school bonds, as well as those of other districts, was in turmoil.194 Accordingly, the court dismissed the case and concluded: "One scholar, one Dollar"-a suggested variant of the "one man, one vote" doctrine proclaimed in Baker v. Carr, 369 U.S. 186-may well become the law of the land. I submit, however, that to do so is the prerogative and within the "territorial imperative" of the Legislature or, under certain circumstances, of the United States Supreme Court.195 E. Pending Cases A list of the cases that have been filed to challenge school financing methods, prepared by the Lawyers' Committee for Civil Rights Under Law, is included here as appendix F.188 IV. WHITHER SERRANO? The spate of recent school finance cases undoubtedly will present the United States Supreme Court with another opportunity to consider whether disparities in educational financing violate the equal protection clause of the Fourteenth Amendment. The three-judge court decision in the Rodriguez case is likely to be the first to reach the Supreme Court.197 The Court might choose to summarily reverse Rodriguez and cite its decisions in McInnis and Burruss as authority. This could suggest that the Court regards the equal protection contentions in the school finance cases as so insubstantial as not to merit full review. On the other hand, it might indicate that despite the nature of the requested relief in the current cases, i.e., a negative declaration against discrimination based on wealth rather than an affirmative order to provide educational resources on the basis of "needs," the Court-as probably was the case in McInnis and Burruss-continues to regard school finance cases as nonjusticiable because of the unmanageability of the requested relief. 187 Ibid. 188 Id. at 5-6. Cf. Robinson v. Cahill, op. cit. supra note where the court also found discrimination against taxpayers. 189 No. 105-197 (Sup. Ct. Westchester Cty. 1972). 190 See text accompanying notes supra. 101 See text accompanying notes supra. 193 As in Serrano, the legal posture of this case was not the merits of what the plaintiffs were contending but whether the situation described in the plaintiff's complaint, if true, would result in a legal remedy. A party moving to dismiss a complaint in effect accepts everything stated in the complaint as true but contends, nevertheless, that there is no violation of the law. 193 Op. cit. supra note at 8 (mem. op.). 194 Ibid. 195 Id. at 10. 198 In addition, Iowa's system of school financing was challenged in a suit filed on February 22, 1972. See N.Y. Times, February 27, 1972, p. 32, col. 3-4. 197 Cases heard by three-judge courts proceed directly to the Supreme Court; jurisdiction in such cases is not discretionary. 28 U.S.C. 1253 (1964). Generally, in cases coming from federal courts of appeal and State courts the Supreme Court has discretion as whether or not to review the cases, 28 U.S.C. 1254, 1257 (1964). |
