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It is difficult to view the equal protection claims in these cases as insubstantial but it is not difficult to imagine that a Court, reluctant to play an "activist”. role, would decline to immerse itself in the complexities or controversy surrounding the school finance question. Perhaps the Court would prefer to remain out of the “educational thicket” just as, in the reapportionment area before Baker v. Carr,198 it preferred to avoid the “political thicket.” One reason for the Court's eventual willingness to adjudicate reapportionment cases was the unlikelihood of relief emanating from any other area. Neither state courts nor State legislatures showed any inclination to correct the inequities typical of most legislative and Congressional apportionment.
The school finance area presents a somewhat different situation. State courts have been willing to act 200 and have found violations of State constitutions as well as the Federal Constitution.201 State legislatures, as well as State Executives, 203 also have demonstrated that they are sensitive to the inequiable manner in which educational resources are distributed. The Federal Government, moreover, is involving itself with this question and there have been recent proposals for greater Federal efforts to help reform educational financing.204 It is possible, therefore, that the Supreme Court might chose to curtail the role of Federal courts in this area.
The interests at stake in the school finance controversy, however, are so basic that it would seem necessary for the Court to define the rights involved and order rapid remedial action—a course it could take without necessarily stipulating in detail just what plan should be adopted.205 Assuming, therefore, that the Court chooses to regard its affirmances in McInnis and Burruss in the limited manner suggested by Serrano, the court could fully consider the merits in the Rodriguez case. A decision to affirm the lower court might be narrowly based.206 The Supreme Court could analyze the Texas school finance system in terms of its impact on Mexican Americans-as does this Report-and conclude that there has been a denial of equal protection.207 Or the Court could face directly, as did the Texas court the question of whether an educational financing system that distributes its benefits in relation to wealth violates the Fourteenth Amendment. A decision on the merits undoubtedly would involve application of the "rational basis” or “compelling state interest” tests.
We already have seen how these tests developed and how they have been applied in the recent school finance cases. Serrano treated the “compelling interest” doctrine as an established member of the Supreme Court household of adjudicatory formulas. If that doctrine retains its vitality, it is likely that most present school finance systems will be found wanting under the equal protection clause. The Court has recognized wealth as a "suspect" classification and the arguments seem compelling to classify education as a "fundamental interest.” Once either or both of these categorizations are made, it would seem unlikely for the Court to recognize any “compelling state interest” to continue the present inequities.
198 369 U.S. 186 (1962). This decision contains an extensive discussion of the "justiciability” issue.
199 See Mr. Justice Clark concurring in Baker v. Carr, Id. at 258–59.
200 See Serrano v. Priest, op. cit. supra note; Hollins v. Shofstall, op. cit. supra note ; Robinson v. Cahill, op. cit. supra note.
201 See Serrano v. Priest, supra and Robinson v. Cahill, supra.
203 In Minnesota, the plaintiffs in Van Dusartz v. Hatfield, op. cit. supra note agreed to dismiss their suit, without prejudice, in December 1971 because they believed that the State's revised school aid formula (passed by the legislature on October 30, 1971), while not meeting the “strict constitutional standard set forth in the Court's October 12 memorandum it appears that riti is considerably closer to meeting the constitutional standard of fiscal neutrality than the previous statute." See Lawyers' Committee tabulation, appendix.
203 In New York State Governor Rockefeller appointed a Commission on the Quality, Cost and Financing of Elementary and Secondary Education to explore this area.
204 See Report of The President's Commission on School Finance, Schools, People and Money (1972).
205 In Baker v. Carr, op. cii. supra note at 226 the Court rejected the argument that manageable judicial standards could not be fashioned and said : "Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action.” (ital in original).
206 When passing on constitutional questions, the Court generally prefers to limit its decision as narrowly as possible. See, e.g., Garner v. Louisiana, 368 U.S. 157 (1961); Sweatt v. Painter, 339 U.S. 629 (1950); Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945) ; Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
207 As noted supra viewing school finance disparities in terms of racial and ethnic discrimination is infinitely more complex and less generally applicable than a wealth analysis. *,, 216 This
We now will review briefly recent Supreme Court decisions that relate to these tests and criteria that undoubtedly will figure prominently in the argument of the Serrano issue before the Court.
Dandridge v. Williams,208 suggests the Court is reluctant to add to the class of "fundamental interests" and adverse to treating all wealth distinctions as “suspect.” Here the Court concluded that even in cases involving “the most basic economic needs of impoverished human beings, it will apply the “rational basis” test absent some improper or "suspect" classification. This case involved a challenge to Maryland's administration of the Aid to Families with Dependent Children (AFDC) program. Maryland, through a “maximum grant regulation,” imposed a limitation on the size of assistance grant any one family unit could receive. The effect of this regulation was to provide families of six or fewer members 210 with assistance sufficient to meet fully their determined standard of need but “to deny benefits to additional children born into a family of six, thus making it impossible for families of seven persons or more to reecive an amount commensurate with their actual needs.
The Court majority, in an opinion by Mr. Justice Stewart, described the issue before it in these words:
we deal with state regulation in the social and economic field, not affecting freedoms guaranteed by the Bill of Rights, and claimed to violate the Fourteenth Amendment only because the regulation results in some disparity in grants of welfare payments to the largest AFDC families. (em
phasis added) 22 Applying the traditional equal protection test, the court concluded that the regulation was “rationally supportable”:
In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis," it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.”
Lindsley v. National Carbonic Gas Co., 220 U.S. 61, 78.213 The Court conceded that the cases it relied upon for the traditional equal protection test “in the main involved state regulation of business and industry” and that the "administration of public welfare assistance, by contrast, involves the most basic economic needs of impoverished human beings.'
?214 This difference, however, did not require the application of a more stringent constitutional standard. The Court noted, however, that this case did not involve a contention that the Maryland regulation was infected with a racially discriminatory purpose or effect such as to make it inherently suspect.
Apparently, what most influenced the Court in this case was that the classification involved did not appear too unreasonable. The language of the Court suggests that it was not especially moved by a regulation that resulted "only ... in some disparity in grants of welfare payments to the largest AFDC families."
208 397 U.S. 471 (1970). 209 Id. at 485.
210 It is not entirely clear how large a family unit must be before it receives less than the subsistence allowance. See Id. at 509 note 2.
211 Id. at 490.
212 Id. at 484. The Court disagreed with the district court that the regulation was invalid for "overreaching” i.e., that it dealt too broadly and indiscriminately with the entire group of AFDC eligibles. The concept of "overreaching." the Court concluded, is applicable when a regulation is challenged as sweeping so broadly as to impinge upon activities protected by the First Amendment guarantee of free speech. Ibid.
213 Id. at 485.
218 Id. at 484. The Court noted at one point that the maximum grant regulation affects “only one-thirteenth of the AFDC families in Maryland
Id. at 480, n. 10. At another point, the Court suggested that absent the maximum grant regulation a family headed by an unemployed person would receive more than one supported by an employed breadwinner earning the minimum wage. Id. at 486, n. 19. See Note, “The Equal Protection Clause and Exclusionary Zoning After Valtierra and Dandridge”, 81 Yale L.J. 61, 80 (1971): "The Dandridge Court may well have reasoned that rather than disproportionately disadvantaging the poor through governmental action, the Maryland statute merely refused to extend assistance on an equal basis to a sub-class of the poor, viz. those with large families. See also Lefcoe, “The Public Housing Referendum Case, Zoning, and the Supreme Court,” 59 Cal. L. Rev. 1384, 1424 n. 140 (1971).
distinction between differently situated poor families the Court did not choose to regard as “suspect”. Nor did the Court undertake an in depth exploration of the nature of the interests involved by the regulation, except to note that they were important.
The dissenting opinion of Mr. Justice Marshall rests heavily on the unfairness of the classification created by the Maryland regulation. According to Justice Marshall :
This classification process affected by the maximum grant regulation produces a basic denial of equal treatment. Persons who are concededly similarly situated (dependent children and their families), are not afforded equal, or even approximately equal, treatment under the maximum grant regulation. Subsistence benefits are paid with respect to others. Some needy families receive full subsistence assistance as calculated by the State; the assistance paid to other families is grossly below their similarly calculated
needs. Justice Marshall does not find either the “traditional”, “rational basis” equal protection test or the "compelling” interest test 218 satisfactory to an analysis of this case. Instead, he concentrates upon “the character of the classification in question, the relative importance to individuals in the class discriminated against of the government benefits they do not receive, and the asserted State interests in support of the classification.” 219 As indicated, Justice Marshall regards the classification in this case as improper—"even under the Court's ‘reasonableness' test” 220_since he views the government benefits involved as vital and he attaches little weight to any of the State's justifications for its regulation. He concludes:
it cannot suffice merely to invoke the spectre of the past and to recite from Lindsley v. Natural Carbonic Gas Co. and Williamson v. Lee Optical of 'Oklahoma, Inc. to decide this case. Appellees are not a gas company or an optical dispenser; they are needy dependent children and families who are discriminated against by the State. The basis of that discrimination—the classification of individuals into large and small families—is too arbitrary and too unconnected to the asserted rationale, the impact on those discriminated against-the denial of even a subsistence existence—too great, and the surposed interests served too contrived and attenuated to meet the requirements of the Constitution. In my view Maryland's maximum grant regulation is
invalid under the Equal Protection Clause of the Fourteenth Amendment.221 In March 1971, the Court decided Boddie v. Connecticut where indigents challenged the constitutionality of a statute requiring the payment of court fees and costs incident to divorce proceeding. The Court might simply have relied on the Griffin v. Illinois line of cases and held that equal protection is denied when access to the courts is dependent on wealth. This was the course advocated in the concurring opinions of Justices Douglas and Brennan. The majority opinion of Justice Harlan, however (joined by Chief Justice Burger and Justices White, Marshall, Stewart and Blackmun), resorted to the “due process of law” standard
217 Id. at 518.
218 In describing the application of the "compelling' interest test, Justice Marshall seems to limit it to those instances where it is agreed that a "fundamental right” is involved. Id. at 520. As we have shown, supra, this is just one branch of the "compelling” interest test. The Court also has applied the test when the classification involved a "suspect" categorization.
210 Id. at 520-21. Justice Marshall's formulation does not differ materially from the "compelling" interest approach used by the court in Serrano where the nature of the classification and the importance of the interest involved were analyzed before concluding that the State was required to show a “compelling” interest for its classification. Justice Marshall concedes that the Court has essentially applied his analysis in other cases “though the various aspects of the approach appear with a greater or lesser degree of clarity in particular cases." Id. at 521, n. 15.
220 id. at 529.
221 Ud. at 529-30. The Dandridge decision has been criticized. See, e.g., Dienes. “To Feed the Hungry: Judicial Retrenchment in Welfare Adjudication", 58 Cal. L. Rev. 535 (1970) ; Graham, "Poverty and Substantive Due Process”, 12 Ariz. L. Rev. 1 (1970); Note, “The Supreme Court, 1969 Term", 84 Harv. L. Rev. 1, 60 (1970). Surprisingly, Dandridge was not mentioned by the Court in Serrano. In Van Dusartz, the Court dismissed Dandridge with these words: “One can concede the significance of welfare payments to an indigent and yet accept the result in Dandridge v. Williams, where the Court did not face a suspect classification.” Van Dusartz v. Hatfield, 334 F. Supp. 870, 875 (D. Minn. 1971). 222 401 U.S. 371 (1971). 223 351 U.S. 12 (1956). See also cases cited in note supra.
of the Fourteenth Amendment.224 Recognizing that “marriage involves interests of basic importance in our society".
p" 225 and that the State monopolizes the means of dissolving marriages,228 Justice Harlan concluded that the plaintiffs had been denied “an opportunity to be heard upon their claimed right to a dissolution of their marriages, and, in the absence of sufficient countervailing justification for the State's action", had been denied due process.227 The opinion, therefore, emphasizes the unfairness of lack of access to the courts when marriage is involved ; the emphasis is on marriage-not on indigency. The opinion, moreover, recognizes that some interests--here marriage-are of “basic importance in our society” and that the State requires “sufficient countervailing justification” to impinge in them. Thus, the Court, in applying a “compelling interest” test in the due process context, seems to be developing a dual standard for testing due process claims parallel to that used in the equal protection area.
224 The Fourteenth Amendment, in addition to proscribing denials of equal protection by the States also provides that no State shall “deprive any person of life, liberty, or prosperty, without due process of law " Justice Douglas, in his concurrence complains that the due process clause "has proven very elastic" whereas "rather definite guidelines have been developed” for construing the equal protection clause. Id. at 384-85. Cf. Bolling v. Sharpe, 347 U.S. 497, 499 (1954). (" "The equal protection of the laws' is a more explicit safeguard of prohibited unfairness than 'due process of law, and, therefore, we do not imply that the two are always interchangeable phrases.") Generally, invocation of the due process clause has a greater overall impact. When a state law is found to violate due process, the state's attempt to regulate a particular subject is completely circumscribed. “Invocation of the equal protection clause on the other hand, does not disable any governmental body from dealing with the subject at hand. It merely means that the prohibition or regulation must have a broader impact.” Justice Jackson concurring in Railway Express y. New York, 336 U.S. 106, 112 (1949). There long has been a dispute regarding the meaning and scope of the due process clause. Such questions as whether the due process clause incorporates all or some of the prohibitions of the Bill of Rights have concerned the Court for decades. See e.g., Adamson v. California, 332 U.S. 46 (1947); Duncan v. Louisiana, 391 U.S. 145 (1968). To those who favor the application of the due process clause on a case by case basis, the test has been one of “fundamental fairness". Duncan v. Louisiana, supra at 187. Justice Black, long an opponent of this application of the due process clause, strongly.criticized its application in the Boddie case. Boddie v. Connecticut, supra at 392– 94. Justice Black also did not regard the charging of fees and costs as a denial of equal protection. Id. at 389.
225 Boddie v. Connecticut, op. cit. supra note at 376.
226 Justice Harlan emphasized that unlike other contractual arrangements which can be rescinded or amended out of court, the marriage contract only can be dissolved in a judicial proceeding. Parties to ordinary commercial contracts have alternative means of conflict resolution ; with respect to marriage, the State monopolizes the only means available for resolving disputes. Thus, persons who seek access to courts to dissolve marriages do so no more voluntarily than a defendant who is in court as a result of being sued. Special protections therefore are appropriate. Id. at 375-77.
227 Id. at 381-82.
228 For a perceptive discussion of indigency and court access see Klimpl. “Access to Court: A Fundamental Right?”' 4 Col. Surv. of Human Rights Law (1972). Two months after its decision in the Boddie case, the Court took action in eight cases which seemed to suggest that Boddie was to be given a narrow application. Review was denied in five cases : 1) In re Garland, 402 U.S. 966 (1971) which involved the right of a bankrupt to file a petition in bankruptcy without payment of a filing fee; (But see U.S. v. Kras, 40 L.W. 3385 (1972) where, on February 21, 1972, the Court agreed to review a similar case.) 2) Meltzer v. C. Buck Le Craw & Co., 402 U.S. 954 (1971) involved a statute that penalized a tenant double his rent if he went to court to challenge his eviction and lost ; 3) Bourbeau v. Lancaster, 402 U.S. 964 (1971) where an indigent could not s fford an appeal docketing fee in a guardianship action ; 4) Beverly v. Scotland Union Enterprises, Inc., 402 U.S. 936 (1971) involving an indigent who could not post the penalty bond required to appeal from an adverse judgment in a housing eviction case; and 5) Kaufman v. Carter, 402 U.S. 864 (1971) where an indigent mother was denied court appointed counsel to defend herself against a state civil suit to declare her an unfit mother and take away five of her seven children. Two cases were sent back to the lower courts for reconsideration in light of Boddie; 1) Sloatman v. Gibbons, 402 U.S. 939 (1971) where a filing fee was required in divorce cases but an indigent could obtain an extension of time to pay that fee and 2) Frederick v. Schwartz, 402 U.S. 937 (1971) involving an indigent who could not afford to appeal a welfare claim from an adverse court decision. In the eighth case, Lindsey v. Normet, 402 U.S. 491 (1971), involving a situation similar to the Beverly case, supra, the Court agreed to review the decision below. See text accompanying note infra for a discussion of the Court's decision in the Lindsey case. Justice Black disagreed with the Court's decision in all but the Lindsey case. He argued that oddie is to be the law, it should not be confined to divorce cases but extended to all civil cases. It would be inconsistent with equal protection to extend special favors to divorce litigants. According to Justice Black," the decision in Boddie v. Connecticut can safely rest on only one crucial foundation- that the civil courts of the United States and each of the States belong to the people of this country and that no person can be denied access to those courts, either for a trial or an appeal, because he cannot pay a fee, finance a bond, risk a penalty, or afford to hire an attorney There is simply no fairness or justice in a legal system which pays indigents' cost to get divorces and does not aid them in other civil cases which are frequently of far greater importance to society.” Meltzer v. C. Buck Le Craw & Co., 402 U.S. 954, 955-56, 960 (1971).
Later the same month of the Boddie decision the Court decided Labine v. Vincent,228 where the Court concluded that there was “nothing in the vague generalities of the Equal Protection and Due Process Clauses which empower the Court to nullify the deliberate choices of the elected representatives of the people of Louisiana." 230 At issue was a Louisiana statute which accorded different inheritance rights to illegitimate children, though duly acknowledged, than to legitimate children of a father who died without a will. Chief Justice Burger and Justices Stewart and Blackmun joined in an opinion by Mr. Justice Black, concurred in separately by Mr. Justice Harlan, which concluded that there was no constitutional basis for upsetting the disparate treatment accorded the inheritance rights of legitimate and illegitimate children under Louisiana law. In a strongly worded dissent, Mr. Justice Brennan, joined by Justices White, Douglas and Marshall concluded that there was “no rational basis to justify the distinction Louisiana creates between an acknowledged illegitimate child and a legitimate one” and that the “discrimination is clearly invidious." 231
Illegitimate children had received somewhat better treatment in 1968 when Justices Brennan, White, Douglas and Marshall could recruit as allies Chief Justice Warren and Justice Fortas. In Levy v. Louisiana 23. and Glona v. American Guarantee and Liability Ins. Co., 233 these six Justices, in an opinion by Mr. this as a case involving “basic civil rights," In Glona, the Court concluded that Justice Douglas, found that Louisiana had denied equal protection of the laws in situations involving illegitimate children. In Levy, the Court held that Louisiana could not deny illegitimates the right to recover for the wrongful death of their mother; the Court followed standard equal protection analysis and treated recover for the deaths of their illegitimate children.235 In both of these cases, Justhere was no rational basis for a law which denied natural mothers the right to tice Black, Harlan and Stewart dissented.236 When, accompanied by Chief Justice Burger and Justice Blackmun, they constituted the majority in Labine, they narrowly restricted the scope of Levy and Glona noting that “Levy did not say and cannot fairly be read to say that a State can never treat an illegitimate child differently from legitimate offspring.” 237 Needless to say, the dissenting Justices in Labine relied heavily on Levy and Glona.238
A month after Labine, the Court again refused to invoke the equal protection clause to invalidate a legislative classification—this time, one alleged to be based on poverty. In James v. Valtierra, the Court upheld a provision of the California Constitution requiring that low-rent public housing projects be approved by a majority of the qualified voters in the community affected. It distinguished Hunter v. Erickson, relied on by the lower court, where the Supreme Court invalidated a provision of a city charter which required that any ordinance regulating real estate on the basis of race, color, religion or national origin could not take effect without approval by a majority of those voting in a city election. That case, said the Court in Valtierra, involved a classification based on race while the California law requires “approval for any low-rent public housing project, not only for projects which will be occupied by a racial minority.” (emphasis added.) 241 The Court placed great reliance on the place of referendums in California's history and concluded that "[t]his procedure for democratic decisionmaking does not violate the Constitutional
229 401 U.S. 532 (1971).
235 Mr. Justice Douglas wryly commented: “It would, indeed, be farfetched to assume that women have illegitimate children so that they can be compensated in damages for their death." Id. at 75.
238 391 U.S. 73 (1968).
op. cit. supra note at 1333.