San Antonio Independent School District v Rodriguez Brief of Amici Curiae

    f

IN  T H E

§>upr£Jtt£ d n u r t  o f  tf|£ ,
OCTOBER TERM, 1972

No. 71-1332

'■)

. 1UL 21 137?

Sa n  A ntonio Independent School D istrict, __
Appellants,

v.
D emetrio P. R odriguez, et al.,

Appellees.

"  v

n » j  A P P F A L  f r o m  t h e  u n i t e d  s t a t e s  d i s t r i c t  c o u r tO N  A P P E A L  F R O M  iH f i  u  D IS T R IC T  O F  T E X A S

BRIEF FOR REPUBLIC NATIONAL BANK OF DALLAS, 
FIRST C?TY NATIONAL BANK OF HOUSTON MER­
CANTILE NATIONAL BANK AT DALLAS, BANK OF 
TEXAS ANDSECURITIES INDUSTRY ASSOCIATION, 

imp A M i n i  CU RIAE

Law rence  E. W alsh
1 Chase Manhattan Plaza 
New York, New York 10005 
212 422-3400

R ichard B. Sm ith  
Gu y  M. Struve 

Of Counsel
V ictor W . B ouldin

2100 First City National 
Bank Building 

Houston, Texas 77002 
713 225-2411

Clifford W . Y oungblood

Of Counsel
Attorneys for Amici Curiae



TABLE OF CONTENTS

PAGE

Question Presented......................................................

Interest of Amici Curiae.............................................

Statement......................................................................

1 . The Nature of Texas School District Bonds
2. The District Court’s Clarification of Orig­

inal Opinion....................................................
3. Judicial Protection of Outstanding and In­

terim-Issued Bonds in Other Jurisdictions

Summary of Argum ent...............................................

A rg u m e n t :

I— This Court Should Reaffirm the District 
Court’s Protection of Outstanding and In­
terim-Issued Bonds ...............................

II__This Court’s Decisions Establish That the
District Court’s Holding Should Not Be 
Applied Retrospectively ...............................

HI__Retrospective Application of the District
Court’s Holding Would Offend the Prin­
ciples Embodied in the Contract Clause and 
the Due Process Clause.................................

Conclusion
22



11

T able of A uthorities

Cases

AtCv t ° \ l '  Ry■ v- Pum Comm’n’ PAGE

Burruss V.Wilkerson, 310 F. Supp. 572 (W.D. Va.
1969), aff d mem., 397 U.S. 44 (1970) ................. i 7_i8

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) 17-19
Cipriano v. City of Houma, 395 U.S. 701 (1969 ) . . .  13 16 
City of Phoenix v. Kolodziejski, 399 U.S. 204

(1970) .............................................. 13 16 17
City of Waco v. Mann, 133 Tex. 163,127 S. W.2d 879 ’

(1939) ......................... .......................................... b
Desist V. United States, 394 U.S. 244 (1 9 6 9 ).......... 18
Erie R.R. v. Tompkins, 304 U.S. 64 (1938) ............  19

Gelpcke v. City of Dubuque, 68 U.S. (1 Wall ) 175
<1863) ............................................................ ' ......... 19

Hollins v. ShofstaU, Ariz. Super. Ct., Maricopa 
County, No. C-253652, June 1 , 1972 ................. . 12

Laconia Bd. of Educ. v. City of Laconia, 285 A 2d 
793 (N.H. 1971) ............................................  n

Linkletter v. Walker, 381 U.S. 618 (1965)................. i 8 19

L°V{19Sl)ity °f  DallaS’ 120 ^  351’ 40 S-W*2d 20 ’
........................................................................  6

Mclnnis v. Shapiro, 293 F. Supp. 327 (N.D. 111.
1968), aff d mem. sub nom. Mclnnis v. Oailvie 
394 U.S. 322 (1969) ..................................... 9 ’ 17_lg

McPhail v. Tax Collector, 280 S.W. 260 (Tex Civ 
App. 1926) ...................................................... ’ ' 6

Morley Construction Co. v. Maryland Cas Co 300 
U.S. 185 (1937) ............................................ ’’ 14

Nashville, C. & S.L. Ry. v. Walters, 294 U S 405 
(1935) ............................................ [..........................  4-L

PAGE

National Surety Corp. v. Friendswood Ind. School 
Dist., 433 S.W.2d 690 (Tex. Sup. Ct. 1968) ........  6

Robinson v. Cahill, 118 N.J. Super. 223, 287 A 2d
187 (1972) ............................................; ............  i i _12  lg

Rodriguez v. San Antonio lnd. School Dist 337 F
Supp. 280 (W.D. Tex. 1971) ................... ’ . 6, 7, 8,14,18

Serrano v. Priest, 5 Cal. 3d 584, 487 P.2d 1241 96 
Cal. Rptr. 601 (1971) ...............................  ’ 9.1Q

Spano v. Board of Educ., 68 Misc. 2d 804, 328 
N.Y.S.2d 229 (Sup. Ct. Westchester County 1972) 15

Sivarb v. Lennox, 405 U.S. 191 (1972) ................. 14
Sweetwater County Planning Committee v Hinkle 

491 P.2d 1234 (Wyo. 1971), 493 P.2d 1050 (Wyo
1 9 7 2 ) ....................................................................................  10-11

Van Dusartz v. Hatfield, 334 F. Supp. 870 (D. Minn.
1971) .........................................................................

Von Hoffman v. City of Quincy, 71 U.S (4 Wall )
535 (1866) ................................................  ’ ■ 2Q

Walz v. Tax Comm'n, 397 U.S. 664 (1 9 7 0 )............... 21

Statutes and Rules

Sup. Ct. Rule 4 2 .............................
Texas Const., Art. 7, § 3 ............. .................................  r f
Texas Educ. Code § 12 .29 .......... . . . . . ! . ! ................  r
Texas Educ. Code § 13 .102 ............   V\
Texas Educ. Code § 13 .107 ........................................ 7
Texas Educ. Code § 20 .01 ........  ...........................  r i  '
Texas Educ. Code § 20.04 .......................  £
Texas Educ. Code § 20.06 ___ ’ ’ ................................. ^
Texas Educ. Code § 23.28 ...... .....................................  7
Texas Educ. Code § 23.76 ..........  ...........................  I
Wyo. Const., Art. 16, § 5 ............. ...............................
Wyo. Stat. § 21.1-253 ............. .................................



IV

PAGE
Other Authorities

American Banker, Nov. 11, 1971 ...............................  9

Comment, The Evolution of Equal Protection: Edu­
cation, Municipal Services, and Wealth, 7 Harv.
Civ. Rights— Civ. Lib. L. Rev. 103 (1972) ........... 15

Daily Bond Buyer, Nov. 15 ,1971 ...............................  9

Moore, Local Nonproperty Taxes for Schools, in 
Johns, Alexander & Stollar, eds., Status and Im­
pact of Educational Finance Programs (National 
Educational Finance Project, Volume 4) (1971) 7

Slawson, Constitutional and Legislative Considera­
tions in Retroactive Lawmaking, 48 Calif. L. Rev.
216 (1960) ................................................................. 20

U.S. Bureau of the Census, Governmental Finances 
in 1969-70 (Series GF-70, No. 5) (1971) ........... 4

U.S. Department of Health, Education, and Welfare,
Bond Sales for Public School Purposes 1970-71 
(DHEW Publication No. (OE) 72-63) (1972) . .  4 ,7

IN THE

j$>uprpm p (H m trt o f  t ljp  l lu i t P i i  S t a t e s
October Term, 1972

No. 71-1332

+

Sa n  A ntonio Independent School District, et al.,

v.
Appellants,

Demetrio P. Rodriguez, et al.,
Appellees.

O N  A P P E A L  F R O M  T H E  U N IT E D  S T A T E S  D IS T R IC T  C O U R T  
F O R  T H E  W E S T E R N  D IS T R IC T  O F  T E X A S

-----------------♦-----------------

BRIEF FOR REPUBLIC NATIONAL BANK OF DALLAS, 
FIRST CITY NATIONAL BANK OF HOUSTON, MER­
CANTILE NATIONAL BANK A T  DALLAS, BANK OF 
TEXAS, AND SECURITIES INDUSTRY ASSOCIATION, 

INC. AS AM ICI CU R IA E

Amici curiae, four Texas banks which hold more than 
$100 million in principal amount of Texas school district 
bonds and the Securities Industry Association, Inc. (herein­
after “ SIA” ) , many of whose members are underwriters 
of Texas school district bonds, submit this brief to urge 
this Court, if it should affirm the decision of the District 
Court, to make clear that its decision should only be applied 
prospectively from the ultimate determination of the action, 
and should not affect the enforceability of Texas school 
district bonds outstanding at the time of the District



2

Court’s decision (hereinafter “ outstanding bonds” ) and 
bonds authorized and issued prior to the ultimate disposi­
tion of this action (hereinafter “ interim-issued bonds” ). 
Counsel for all parties have given written consent to the 
filing of this brief pursuant to Rule 42 (2 ).*

Question Presented
The amici banks and the SIA do not wish to, and do not, 

take any position with respect to the District Court’s basic 
holding that the present Texas system of financing public 
education denies equal protection. This brief is addressed 
solely to the following question:

Should any restructuring of the system of financing 
public education in the State of Texas pursuant to 
this Court’s decision on the present appeal protect the 
continuing collectibility of property taxes levied to 
pay the principal and interest on outstanding and 
interim-issued Texas school district bonds?

The District Court in its Clarification of Original Opinion 
dated January 26, 1972 held that this question should be 
answered in the affirmative, and we support this holding.

* The amici banks and the S IA  were denied leave to intervene of 
right in the District Court, and appealed directly to this Court from 
this denial in order to establish their right to participate as parties and 
to present two issues not then fully presented by the existing parties, 
(1 )  the need to assure the continuing enforceability o f outstanding 
and interim-issued bonds, and (2 )  the need to allow the states broad 
flexibility in framing any new system of financing public education. 
Republic Nat’l Bank v. Rodriguez, Oct. Term, 1971, No. 71-1339. 
This Court dismissed the appeal for want of jurisdiction, but granted 
leave to file the jurisdictional statement as a brief amici curiae in con­
nection with the jurisdictional statement on the present appeal pur­
suant to Rule 42(1). 40 U .S .L .W . 3575 (June 7, 1972). This brief 
is limited to the first issue presented in the earlier appeal, because we 
believe that the need for flexibility has now been adequately presented 
by the earlier jurisdictional statement and by other amici.

3

Interest of Amici Curiae

About $3 billion in principal amount of Texas school 
district bonds were sold during the 25 years 1946-1971 (R. 
199, 2*), of which over $2 billion are still outstanding (R. 
184, 3-4). About $250 million in principal amount of Texas 
school district bonds were sold in 1971 alone (R. 200, Ex. 
F ). Members of the SIA, a voluntary national organization 
of more than 700 securities firms and banks, served as un­
derwriters for the great majority of these bonds (R. 199, 
1 -2 ) and intend to continue to underwrite Texas school 
district bonds (R. 204, Masterson Aff., 2). Many SIA 
members also hold outstanding Texas school district bonds 
as investments (ibid.), and the four amici banks hold over 
$100 million in principal amount of Texas school district 
bonds (almost five per cent of the total outstanding) for 
their own account and as trustees for various charitable, 
testamentary, and other trusts.**

Any impairment of the continuing collectibility of the 
property taxes levied to pay the Texas school district bonds 
held by the amici banks and other SIA members would 
adversely affect their value and their status as legal invest­
ments for fiduciaries, and would jeopardize the market­
ability of future issues of Texas school district bonds.*** 
Thus the interest of the amici banks and the SIA in the 
continuing enforceability of outstanding and interim- 
issued Texas school district bonds is immediate and 
substantial.

* Citations in the form “ R. 199, 2”  refer to page 2 of document 199 
o f  the record on appeal.

** R. 204, Roberts A ff., 1-2, Rogers Aff., 1, Lyne Aff., 1-2, Hazard 
Aft., 1.
*** R. 204, Roberts A ff., 2, Rogers Aff., 2, Lyne Aff., 2, Hazard 
Aft., 2.



4

The members of the SIA have a similarly direct and sub­
stantial interest in outstanding school district bonds 
throughout the nation, all of which would be affected by 
this Court’s decision in this case. Approximately $50 
billion of public school bonds were issued in the United 
States during the 25 years 1946-1971, and at least 90% 
of these bonds were underwritten and distributed by SIA 
members (R. 204, Masterson Aff., 1). $3.9 billion of pub­
lic school bonds were sold in 1970-1971 alone.* The national 
total of public school bonds outstanding on June 30, 
1970 was more than $31.5 billion.** It is estimated that 
95% of these bonds have remaining maturities ranging 
from one to twenty years, and 57% have remaining maturi­
ties ranging from five to twenty years.*** The continuing 
collectibility of the property taxes which support these 
bonds will thus remain of vital importance for years to 
come.

* U. S. Department of Health, Education, and Welfare, Bond 
Sales for Public School Purposes 1970-71 (D H E W  Publication No 
(O E ) 72-63), at 11 (1972).
** U. S. Bureau o f the Census, Governmental Finances in 1969-70 

(Series GF-70, No. 5 ), at 28 (1971).
*** According to estimates based on SIA  data for state and local gen­
eral obligation bonds as a whole (which include virtually all public 
school bonds), the distribution of the time remaining at December 31, 
1971 until maturity of such bonds was as follows:

1-4 Y e a r s ..........................  $39.4 Billion (37 .2% )
5-9 Y e a r s ..........................  $31.3 Billion (29 .6% )
10-14 Y e a r s ...................... $17.3 Billion (16 .4% )
15-19 Y e a r s ......................  $11.9 Billion (11 .2% )
20 Years or M o r e ...........  $ 5.9 Billion (5 .6% )

5

Statement

1. The Nature of Texas School District Bonds

Article 7, § 3 of the Texas Constitution authorizes the 
Texas Legislature to establish school districts and to permit 
them to levy and collect ad valorem property taxes. Pur­
suant to this authorization, the Legislature has authorized 
Texas school districts to issue negotiable coupon bonds “ for 
the construction and equipment of school buildings in the 
district and the purchase of the necessary sites therefor,” 
provided that both the issuance of the bonds and the levying 
of the property taxes necessary to pay them are authorized 
by the voters of the district in a special bond and tax 
election. Texas Educ. Code §§ 20.01, 20.04. Before such 
bonds may be issued, they must be approved as properly 
authorized by the Attorney General of Texas and registered 
by the Comptroller of Public Accounts,

“ and after such approval and registration such 
bonds shall be incontestable in any court, or other 
forum, for any reason, and shall be valid and bind­
ing obligations in accordance with their terms for all 
purposes.”  Texas Educ. Code § 20.06.

General bond market practice also conditions the sale 
of school district bonds to investors upon the unqualified 
approving opinion of recognized bond counsel (R. 199, 7-8). 
Both the Attorney General of Texas and bond counsel 
require as a condition of their approval a “ no-litigation 
certificate” by the issuing school district that it knows of 
no pending or threatened litigation in any manner ques­
tioning the validity of the bonds or the levying of property 
taxes to pay them (R. 199, 6-7, Ex. B ). The certificate of 
the Comptroller of Public Accounts attesting the approval



6

of the Attorney General and, in most cases, the approving 
opinion of bond counsel are set forth in full on the bonds 
themselves (R. 199, Ex. A ).

Texas school district bonds are payable solely from ad 
valorem taxes levied on property within the district. See 
Texas Educ. Code § 20.01. A specific rate of property tax 
is levied each year to pay each specific issue of bonds, and 
the funds collected therefrom become trust funds for the 
benefit of the bondholders and may not lawfully be expended 
for any other purpose. Love v. City of Dallas, 120 Tex. 
351, 367-68, 40 S.W.2d 20, 27 (1931); McPhail V. Tax 
Collector, 280 S.W. 260, 265 (Tex. Civ. App. 1926). If the 
bonds are not paid, the bondholders’ only remedy is by 
mandamus to compel the school district to levy the specific 
property tax to pay the principal and interest on the 
defaulted bonds. City of Waco V. Mann, 133 Tex. 163, 174, 
127 S.W.2d 879, 885 (1939). The property of a Texas 
school district has been held not to be subject to execution 
or garnishment. National Surety Cory. V. Friendswood hid. 
School Dist., 433 S.W.2d 690, 694 (Tex. Sup. Ct. 1968).*

* The principle that an obligation o f a Texas school district may 
not be enforced by execution or garnishment applies to all school dis­
trict obligations, not merely to school district bonds. For this reason 
the District Court’s Clarification of Original Opinion in the present 
case protects any outstanding or interim “ contractual obligationi in­
curred by a school district in Texas for public ^ o l  purposes. 
Rodriquez v. San Antonio Ind. School Dist., 337 F. Supp. 280, 2e 
(\VD . Tex. 1971). The need to protect outstanding and interim- 
issued school district bonds is especially acute, however, for two rea­
sons- (1 )  such bonds, unlike other obligations, are negotiable instru­
ments backed by an express pledge of property tax revenues whose 
validity is certified by the Attorney General o f Texas and upon which 
bond purchasers rely; and (2 )  such bonds are of much longer dura­
tion than other contractual obligations o f school districts. Texas school 
district bonds may have maturities o f up to forty years, Texas Educ. 
Code § 20 01 while other contractual obligations are limited to shorter 
periods. See; e.g., Texas Educ. Code §§ 12.29(a) (textbook adoption

7

Most public school bonds elsewhere in the nation are 
likewise supported by local property taxes and other local 
taxes * Thus an affirmance of the District Court without 
making clear that outstanding and interim-issued bonds 
will be protected would have severe repercussions not only 
in Texas but throughout the country.

2. The District Court’s Clarification 
of Original Opinion
On December 23, 1971 the three-judge District Court 

issued its decision in the present case holding that the 
present Texas system of financing public education denies 
equal protection and enjoining (after a two-year stay) the 
enforcement of Article 7, § 3 of the Texas Constitution, 
the State constitutional basis for all Texas school district 
property taxes. Rodriguez v. San Antonio Ind. School Dist., 
337 F. Supp. 280, 285-86 (W.D. Tex. 1971). The question 
of the continuing enforceability of outstanding and interim- 
issued Texas school district bonds had not been raised by 
any party, and the District Court’s decision was silent on 
this question. For this reason it had a devastating impact 
upon Texas school district bonds.
contracts; six years), 13.102 (teachers’ probationary contracts; three 
vears) 13.107 (teachers’ continuing contracts may be terminated at 
end of any year “ because of necessary reduction of personnel ), 
23 28fb l (c )  (employment contracts; three or five years), 23 ./o
(depository banks; two years).

* Putting aside revenue bonds, over 90%  of the public school bonds 
sold in 1970-1971 were sold by school districts and other local bodies. 
See U. S. Department o f Health, Education, and Welfare, Bond Sales 
for Public School Purposes 1970-71 (D H E W  Publication No. (O  ) 
72-631 at 6 14 (1972). Property taxes are estimated to comprise 
97 to 98%  of all local school tax revenues. Moore Local Nonproperty' 
Tavcs tor Schools, in Johns, Alexander & Stollar, eds., Status and 
Impact of Educational Finance Programs (National Educational Fi­
nance Project, Volume 4 ) , at 209-10 (1971).



8

Neither the Attorney General of Texas nor bond counsel 
for issuers were able to approve Texas school district bonds 
issued after the decision (R. 199, 7-10). The sale of such 
bonds halted abruptly (R. 199, 10), and only resumed 
after the District Court’s Clarification of Original Opinion 
was issued on January 26, 1972. The value of outstanding 
Texas school district bonds fell immediately after the deci­
sion (R. 199, 10). »

Defendants, joined by the SIA as amicus curiae and by 
other amici, urged the District Court to clarify its decision 
to specify that it was not intended to affect the continued 
collectibility of property taxes levied to pay outstanding 
and interim-issued bonds (R. 184,192, 199). The SIA took 
no position on the merits of the District Court’s decision. 
The SIA explained that in order to safeguard the value 
and marketability of outstanding and interim-issued bonds 
it was necessary to insure the collectibility of property 
taxes to be levied to pay such bonds after the ultimate 
disposition of the action (R. 199, 10-11). The District 
Court’s Clarification of Original Opinion dated January 26, 
1972 expressly insured such continuing collectibility. 
Rodriguez v. San Antonio bid. School Dist., 337 F. Supp. 
280, 286 (W.D. Tex. 1971).

The purpose of the present brief is to urge this Court, 
if it should affirm the District Court, to make clear that 
the District Court acted rightly in issuing its Clarification 
of Original Opinion to protect outstanding and interim- 
issued Texas school district bonds.

3. Judicial Protection of Outstanding and Interim-
Issued Bonds in Other Jurisdictions

All of the courts which have held that the present system 
of financing public education denies equal protection have 
assured bond investors that this holding does not under­

9

mine the enforceability of outstanding and interim-issued 
school district bonds. This assurance has taken diverse 
forms, but in all three cases which have gone to final 
judgment— the present case and the cases in Arizona and 
New Jersey— it has taken the form of an express provision 
in the final judgment safeguarding the continuing collecti­
bility of property taxes levied to pay outstanding and 
interim-issued bonds.

California. On August 30, 1971 the California Supreme 
Court held that the present California system of financing 
public education denies equal protection under the Federal 
and State Constitutions. Serrano v. Priest, 5 Cal. 3d 584, 
487 P.2d 1241, 96 Cal. Rptr. 601 (1971). There was 
widespread concern that the Serrano decision might be 
construed as affecting outstanding and interim-issued 
bonds, and many school bond issues across the country 
were withdrawn or postponed indefinitely.*

On October 21, 1971, in response to this concern, the 
California court issued a Modification of Opinion adding 
the following paragraph to its original opinion:

“ In sum, we find the allegations of plaintiffs’ 
complaint legally sufficient and we return the cause 
to the trial court for further proceedings. We 
emphasize, that our decision is not a final judgment 
on the merits. We deem it appropriate to point out 
for the benefit of the trial court on remand (see 
Code Civ. Proc. § 43) that if, after further pro­
ceedings, that Court should enter final judgment 
determining that the existing system of public 
school financing is unconstitutional and invalidat­
ing said system in whole or in part, it may properly

* E.g., American Banker, Nov. 11, 1971, p. 1; Daily Bond Buyer, 
Nov. 15, 1971, p. 1.



10

provide for the enforcement of the judgment in 
such a way as to permit an orderly transition from I
an unconstitutional to a constitutional system of ■
school financing. As in the cases of school desegre- 1
gation (see Brown v. Board of Education (1955)
349 U.S. 294) and legislative reapportionment (see 
Silver v. Brown (1965) 63 Cal.2d 270, 281), a 
determination that an existing plan of govern­
mental operation denies equal protection does not 
necessarily require invalidation of past acts under­
taken pursuant to that plan or an immediate imple­
mentation of a constitutionally valid substitute.
Obviously, any judgment invalidating the existing 
system of public school financing should make clear 
that the existing system is to remain operable until 
an appropriate new system, which is not violative 
of equal protection of the laws, can be put into 
effect.”  5 Cal. 3d at 618, 487 P.2d at 1266, 96 
Cal. Rptr. at 626.

Minnesota. In a Memorandum and Order filed on Octo- 
* 12, 1971 the United States District Court for the Dis- 
ct of Minnesota denied defendants’ motion for summary 
Igment and held that the present system of financing 
blic education in Minnesota violates the Equal Protection 
luse. Van Dusartz v. Hatfield, 334 F. Supp. 870 (D. 
nn. 1971). The court made clear that it did not intend 
holding to have any immediate effect upon school financ- f
;; it did not direct any affirmative relief, but deferred to 

action of the Minnesota Legislature. 334 F. Supp. *
377.

Wyoming. On December 14, 1971 the Supreme Court of 
roming adopted the Serrano principle. Sweetwater 
mty Planning Committee v. Hinkle, 491 P.2d 1234 
yo. 1971), 493 P.2d 1050 (Wyo. 1972). The Wyoming 
rt stated, however, that “ [n]o invidious discrimination

11

will be involved if bonds are voted by any school district for 
capital improvements, and if special levies are made within 
the district to retire such bonds.”  491 P.2d at 1238. Since 
school bonds may be issued in Wyoming only for capital 
improvements, see Wyo. Const., Art. 16, § 5 ; Wyo. Stat. 
§ 21.1-253, this statement obviated any question as to the 
continuing validity of Wyoming school bonds.

New Hampshire. The New Hampshire Supreme Court 
held on December 23, 1971 that a city council was required 
to furnish the board of education with funds required to 
meet state minimum standards. Laconia Bd. of Educ. v. 
City of Laconia, 285 A.2d 793 (N.H. 1971). It refused 
to consider a belated argument that such a holding would 
violate the Serrano principle, in part on the ground that 
Serrano was not made retroactive:

“ Thirdly, it is doubtful that any consideration of 
this contention would have any retroactive effect 
whatever result was reached. See October 2 1 , 1971 
modification of opinion in Serrano v. Priest supra 
reported in 40 U.S.L.W. 2339 where it was stated 
that the ‘existing system of school financing is to 
remain in effect until it has been found unconstitu­
tional and replaced by an appropriate new system’.”  
285 A.2d at 796-97.

New Jersey. On January 19, 1972 the New Jersey Su­
perior Court held that the present system of financing 
public education in New Jersey violates the Equal Protec­
tion Clauses of the Federal and State Constitutions and 
the Education Clause of the State Constitution. Robinson 
V. Cahill, 118 N.J. Super. 223, 287 A.2d 187 (1972). It 
made clear, however, that

“ this declaration shall operate prospectively only 
and shall not prevent the continued operation of the 
school system and existing tax laws and all actions



12

taken thereunder. This declaration shall not invali­
date past or future obligations (such as school 
bonds, anticipation notes, etc.) incurred under the 
provisions of existing school laws and tax laws. 
Said laws shall continue in effect unless and until 
specific operations under them are enjoined by the 
court.”  118 N.J. Super, at 280, 287 A.2d at 217.*

'ZOna. On June 1, 1972 the Arizona Superior Court 
sd a declaratory judgment that the present Arizona 
ti of financing public education violates the Federal 
State Equal Protection Clauses. Hollins V. Shofstall, 
Super. Ct., Maricopa County, No. C-253652, June 1, 

On June 6, 1972 the court issued a Supplemental 
orandum making clear that it intended to protect the 
nued enforceability of outstanding and interim-issued 
s throughout their entire life:

“ Notwithstanding anything to the contrary stated 
in the memorandum and order of June 1, 1972, it is 
the intention of the court that general obligation 
bonds heretofore or hereafter issued by school dis­
tricts shall enjoy full and complete security afforded 
by the applicable bond-enabling statute, and the 
bondholder shall have recourse to the levy of an ad 
valorem tax upon all taxable property within the 
district to compel the payment of the principal of 
and interest on such bonds, throughout their entire 
life and as the same shall become due, in the event 
that funds for the payment of such bonds are not 
lawfully available from other sources.”

Paragraph 7 o f the Judgment entered on February 4, 1972 in 
insonv. Cahill provided even more explicitly that nothing herein 
1 be deemed to limit, impair or affect any bonds heretofore or here- 
r issued or authorized for public school purposes, or any notes or 
t  obligations at any time authorized or issued in anticipation o f 
i bonds, or any taxes levied or required to be levied with respect 
ny such bonds, notes or other obligations . . . .

Summary of Argument

1 . As no appeal has been taken from the portion of the 
District Court’s judgment which protects outstanding and 
interim-issued bonds, it is therefore not actually before this 
Court for review. Nevertheless, if the Court affirms the 
decision of the District Court, we respectfully submit that 
the Court should make clear that the decision will not 
affect outstanding and interim-issued bonds, in order to 
prevent the disruption of school bond markets throughout 
the nation which might otherwise result.

2 This Court’s decisions, especially Cipriano v. City of 
Houma, 395 U.S. 701, 706 (1969) (per curiam), and City 
of Phoenix V. Kolodziejski, 399 U.S. 204, 213-15 (1970), 
which are almost exactly in point, establish that the District 
Court’s decision should not be retrospectively applied. Ret­
rospective application is wholly unnecessary to achieve the 
purpose of the District Court’s holding, and would be strik­
ingly unjust in light of bondholders’ reliance upon express 
legal opinions and representations by the issuers that the 
bonds are supported by valid and enforceable property
taxes.

3. Retrospective application of the District Court s hold­
ing would also offend the constitutional values embodied in 
the Contract Clause and the Due Process Clause. The Equal 
Protection Clause should not be unnecessarily applied in a 
manner which brings it into conflict with these coordinate 
constitutional values.



14

ARGUM ENT

I
This Court Should Reaffirm the District Court’s 
Protection of Outstanding and Interim-Issued

Bonds

The District Court’s Clarification of Original Opinion 
issued on January 26, 1972 stated that its decision and 
order of December 23, l\)ll in no way affected the continu­
ing collectibility of property taxes levied to pay outstanding 
bonds and interim-issued bonds issued and delivered before 
December 23, 1973, by which time the District Court anti­
cipated that the present system of financing public educa­
tion in Texas would be replaced by a constitutional system.* 
Rodriguez v. San Antonio Ind. School Dist., 337 F. Supp. 
280, 285-86 (W.D. Tex. 1971).

Defendants have not appealed from this portion of the 
District Court’s order, and plaintiffs have taken no ap­
peal.** It follows that the portion of the District Court’s 
order which protects outstanding and interim-issued bonds 
may not be disturbed in this Court. See, e.g., Swarb v. 
Lennox, 405 U.S. 191, 201-03 (1972); Morley Construction 
Co. v. Maryland Cos. Co., 300 U.S. 185, 191-92 (1937).

* W e have spoken in this brief of the need to protect interim-issued 
bonds issued and delivered prior to the ultimate disposition o f this 
action, rather than interim-issued bonds issued and delivered before 
December 23, 1973, for two reasons: (1 ) the necessary transitional 
period, if the District Court’s holding is affirmed, will differ from state 
to state and may be longer or shorter than two years; and (2 )  while 
the District Court’s judgment requires the State of Texas to act before 
December 23, 1973, final judicial approval of a new system o f public 
school financing might not take place until a later date.

** Indeed, plaintiffs represented to the District Court, in order to 
induce it to deny the motion made by the SIA  and the four amici 
banks for permission to intervene, that they would not seek to over­
turn the District Court’s clarification insuring the continuing enforce­
ability of outstanding and interim-issued bonds (R . 207, 28-29).

15

We nonetheless respectfully urge the Court, if it should 
affirm the decision of the District Court, to make clear that 
its decision should only be applied prospectively from the 
ultimate determination of the action, and should not affect 
the continued collectibility of property taxes to be levied to 
pay outstanding and interim-issued school district bonds. 
Otherwise, especially in view of the numerous similar cases 
now pending in many jurisdictions,* this Court’s decision 
might have the same sharply disruptive effect upon school 
bond markets throughout the nation as the initial decision 
of the District Court had in Texas, and would draw into 
question the rights of holders of more than $31.5 billion in 
outstanding public school bonds. Such a disruptive shock, 
even if later corrected, might permanently lessen public 
confidence in the security of public school bonds.**

II

This Court’s Decisions Establish That the 
District Court’s Holding Should Not Be 

Applied Retrospectively

The District Court’s holding that its decision should be 
applied only prospectively is squarely supported by two 
decisions of this Court, also involving local government

* A  partial summary o f these cases, listing 24 cases in 15 states, 
is given in Comment, The Evolution o f Equal Protection: Education, 
Municipal Services, and Wealth, 7 Harv. Civ. Rights— Civ. Lib. L. 
Rev. 103, 200-13 (1972).

** It is to avoid such adverse consequences that the courts which 
have held that existing school financing systems deny equal protection 
have assured bond investors that this holding does not affect outstand­
ing and interim-issued bonds (see pp. 8-12 supra). Similarly, a New 
York trial court declined to anticipate the decision of this Court on the 
basic equal protection issue in order to avoid “ placing the sword of 
Damocles over school bond financing in this State for the next several 
years.”  Spano v. Board of Educ., 68 Misc. 2d 804, 808, 328 N.Y.S.2d 
229, 234 (Sup. Ct. Westchester County 1972).



X \ J

bonds and the Equal Protection Clause, which are almost 
exactly in point. In Cipriano v. City of Houma, 395 U.S. 
701, 706 (1969) (per curiam), this Court ruled that the 
franchise in a municipal revenue bond election cannot con­
stitutionally be limited to property taxpayers, but held that 
this decision should be given prospective effect only:

“ Significant hardships would be imposed on cities, 
bondholders, and others connected with municipal 
utilities if our decision today were given full retro­
active effect. Where a decision of this Court could 
produce substantial inequitable results if applied 
retroactively, there is ample basis for avoiding the 
‘injustice or hardship’ by a holding of non-retro­
activity. Great Northern R. Co. v. Sunburst Oil & 
Refining Co., 287 U.S. 358, 364 (1932). See Chicot 
County Drainage Dist. v. Baxter State Bank, 308 
U.S. 371 (1940). Cf. Linkletter v. Walker, 381 U.S. 
618 (1965). Therefore, we will apply our decision 
in this case prospectively.”

Just as in Cipriano, a decision retrospectively wiping out 
the sole security for Texas school district bonds would im­
pose “ significant hardships” and “produce substantial in­
equitable results” . As in Cipriano, such an injustice should 
be avoided by a holding of nonretroactivity.

In City of Phoenix v. Kolodziejski, 399 U.S. 204, 213-15 
(1970), this Court extended Cipriano to voting on muni­
cipal general obligation bonds, and likewise held that its 
decision should be given prospective effect only. The Dis­
trict Court’s holding of nonretroactivity in the present case 
is identical to Cipriano and Kolodziejski, except that the 
District Court made its decision prospective from Decem­
ber 23, 1973, by which time the District Court anticipated 
that a new system of financing public education would be

instituted. This difference is a practical necessity because 
the pressing capital needs of school districts must continue 
to be met by the issuance of bonds under the present system 
until another system has been finally approved by the Leg­
islature and the Courts.

This Court recently summarized the three key factors 
bearing on the question whether a new decision should be 
applied retroactively in Chevron Oil Co. v. Huson, 404 U.S. 
97, 106-07 (1971) : (1 ) whether the effect of the decision 
is to “ establish a new principle of law, either by overruling 
clear past precedent on which litigants may have relied,

. or by deciding an issue of first impression whose reso­
lution was not clearly foreshadowed” ; (2 ) whether retro­
active application of the decision would further or retard 
its purpose; and (3 ) whether retroactive application would 
produce substantial inequitable results. All three of these 
factors argue strongly against retrospective application of 
the District Court’s decision in the present case.

Although, as already stated, the SIA and the amici banks 
do not wish to and do not take any position with respect to 
the merits of the present appeal, there can be no question 
that a decision by this Court affirming the judgment of the 
District Court would “ establish a new principle of law” . 
So far as we are aware, no action challenging the validity 
of existing systems of financing public education under the 
Equal Protection Clause was ever brought until 1968. 
When such cases were brought, this Court twice sustained 
existing systems against equal protection attacks. See Mc- 
Innis v. Shapiro, 293 F. Supp. 327 (N.D. 111. 1968), aff’d 
mem. sub nom. Mclnnis v. Ogilvie, 394 U.S. 322 (1969); 
Burruss V. Wilkerson, 310 F. Supp. 572 (W.D. Va. 1969), 
aff’d mem., 397 U.S. 44 (1970). We recognize that the



18

District Court held Mclnnis and Burruss to be distinguish­
able from its decision, Rodriguez v. San Antonio Ind. 
School Dist., 337 F. Supp. 280, 283-84 (W.D. Tex. 1971), 
and take no position with respect to the validity of the dis­
tinction on the merits; but we respectfully submit that, 
even accepting the distinction, the District Court’s deci­
sion was not “ clearly foreshadowed” by any decision of 
this Court.

The second factor recognized in Chevron Oil Co. v. 
Huson is the purpose of the new decision. See also Desist 
v. United States, 394 U.S. 244, 249-50 (1969); Linklettery. 
Walker, 381 U.S. 618, 636-37 (1965). The purpose of the 
District Court’s holding— removing disparities in educa­
tional expenditures arising from disparities in taxable 
wealth— does not require the elimination of the property 
taxes needed to pay outstanding and interim-issued bonds. 
It merely requires that, without altering school districts’ 
duty to levy property taxes to pay outstanding and interim- 
issued bonds as they have solemnly contracted to do, the 
State adjust the allocation of remaining State and school 
district educational funds to insure that any constitution­
ally mandated balance of educational expenditures is 
achieved.’  The thrust of Serrano and the decisions that 
have followed it, including the decision of the District 
Court, is to condemn the end result of the school financing 
system, not any specific component of the collective source 
of funds.

* Some courts have held that the Serrano principle serves the addi­
tional purpose o f equalizing the property tax burden on taxpayers in 
different school districts. See, e.g., Robinson v. Cahill, 118 N.T. 
Super. 223, 276-80, 287 A .2d 187, 215-16 (1972). This purpose can 
likewise be met by statewide redistribution of educational funds with­
out disturbing the property tax security for outstanding and interim- 
issued bonds.

19

Finally, it is plain that retrospective application of the 
District Court’s decision would produce substantial inequit­
able results, the third factor identified in Chevron Oil Co. 
v. Huson. Investors acquired outstanding Texas school 
district bonds in reliance upon express representations by 
the issuers and legal opinions of bond counsel and the 
Attorney General of Texas that the bonds were valid obli­
gations supported by an enforceable duty to levy ad 
valorem taxes on property within the issuing school dis­
trict. These opinions, indeed, were commonly printed on 
the face of the bonds themselves, which are fully negotiable. 
Without these opinions, the bonds could not have been 
sold. In reliance upon these opinions, the bonds have been 
accepted as investments not only by numerous individuals 
but also by the amici banks and many other institutions for 
their own account and as trustees for charitable, testa­
mentary, and other trusts. Under these circumstances, to 
apply the District Court’s decision retroactively so as to 
wipe out the property tax security for the bonds would 
be strikingly unjust. The District Court correctly made 
clear that it intended no such result.*

* This Court recognized the injustice o f retroactively invalidating 
bonds as early as Gclpckc v. City of Dubuque, 68 U.S. (1 W all.) 175, 
205-07 (1863), which held that bonds whose validity had been upheld 
by the highest State court would be recognized in a federal court de­
spite an overruling decision by the State court. Although the precise 
holding of Gelpcke v. City o f Dubuque has probably been overruled 
by Eric R.R. v. Tompkins, 304 U.S. 64, 69 n.l (1938), its underlying 
principle was discussed with approval in Linklcttcr v. Walker, 381 
U.S. 618, 624-25 (1965).



20

III

Retrospective Application of the District Court’s 
Holding Would Offend the Principles Embodied 
in the Contract Clause and the Due Process Clause

Retrospective application of the District Court’s holding 
outstanding and interim-issued bonds would contravene 
i principle of governmental good faith embodied in the 
intract Clause. This Court has long held that a State 
iy not, under the Contract Clause, withdraw a power to 
x which has been made the basis for bonds which are still 
tstanding. E.g., Von Hoffman V. City of Quincy, 71 U.S.
[ Wall.) 535, 554-55 (1866). Under this principle the 
istrict Court’s holding could not be utilized as a ground 
r legislative repeal of the property taxes supporting 
hool district bonds, because such invalidation is not neces- 
try to achieve the purpose of the District Court’s holding 
nd the decisions of this Court establish that governmental 
oligations may not be repudiated unless “ the extent of the 
gpudiation is only that which is reasonably necessary to 
ffectuate a valid objective” . Slawson, Constitutional and 
„egislative Considerations in Retroactive Lawmaking, 48 
Jalif. L. Rev. 216, 244 (1960).

Retrospective application of the District Court’s holding 
lould also run counter to the values embodied m the Due 
Process Clause. It would drastically change the nature of 
;he bondholders’ contracts because of a constitutional prob- 
em which they did not cause and from which they derived 
no benefit. If it were sought to be legislatively imposed, such 
an imposition of a burden upon a group which did not cause 
or benefit from the underlying problem would deny due 
process of law. C/., e.g., Atchison, T. <& S.F. Ry. v. Public

um. ( W *  346 U.S. 346. 352-53 (1953); N e v il le , C. 
£  S.L. Ry. v. Walters, 294 U.S. 405, 428-32 (1935).

The principles embodied in the Contract Clause and the 
Due Process Clause are of coordinate dignity with the Pim- 
ciple^Tequality embodied in the Equal Protection Clause 
Wherever possible, such coordinate constitutional pnn«P 
lo u ld  be accommodated, as this Court has observed 
example, with respect to the Establishment and Free Ex 
cise Clauses of the First Amendment. E.g., Walz V. T
Z n m ’n, 397 U.S. 664, 668-72 (1970). This
strongly supports the conclusion of the District Couit that 
its decision should not be retrospectively applied.



22

CONCLUSION

For the reasons given above, Republic National Bank of 
Dallas, First City National Bank of Houston, Mercantile 
National Bank at Dallas, Bank of Texas, and Securities 
Industry Association, Inc., respectfully urge the Court, if 
it should affirm the decision of the District Court, to make 
clear that the District Court correctly held that its decision 
should in no way affect the continuing collectibility of prop­
erty taxes to be levied to pay the principal and interest on 
Texas school district bonds outstanding at the time of the 
District Court’s decision or authorized and issued prior to 
the ultimate disposition of this action.

Dated: July 21, 1972

Respectfully submitted,

Law rence  E. W alsh

1 Chase Manhattan Plaza 
New York, New York 10005 
212 422-3400

R ichard B. Sm ith

Gu y  M. Struve 
Of Counsel

V ictor W . Bouldin

2100 First City National 
Bank Building 

Houston, Texas 77002 
713 225-2411

Clifford W . Y oungblood 
Of Counsel

Attorneys for Amici Curiae



IN TH E

Supreme Court of Ujc ulntteb State#
O cto b e r  T erm , 1971

No. 71-1332

SAN A N T O N IO  INDEPENDENT SCHO OL D IS­
T R IC T , et al.,

Appellants,
vs.

D E M E T R IO  P. R O D R IG U E Z, et al.,
r r Appellees.

ON APPEAL FROM  TIIF. UNITED STATES D IST R IC T  C O U R T 
FOR THE WESTERN D ISTR ICT OF TEXAS

M ill  F or AMICI C U R IA E : RICH ARD  M. CLO W E S, SU PER­
INTENDENT OE SCHOOLS OF TH E  CO U N TY OF LOS 
ANOEI.ES, H ARO LD  J. O ST LY , T A X  CO LLECTO R AND 
T R E A SU R E R  OE TH E  COUNTY OF LOS ANG ELES; EL 
S E (; UNDO UNI I'I ED SCHO OL D IS T R IC T ; GLENDAI.E 
UNIFIED SCH O O L D IS T R IC T ; SAN M ARINO UNIFIED 
SC H O O L D IS T R IC T ; LONG REACH UNIFIED SCH O O L 
D IS T R IC T ; SO U TH  R A Y  UNION IUGII SCH O O L D IS­
T R IC T : R E VE K LY IIIEI.S UNIFIED SCH O O L D IS T R IC T ; 
AND SAN TA MONICA UNIFIED SCH O O L D IS T R IC T , A LL 
O F  LO S ANGELES COU NTY.

JOHN D. MA1IARG,
County Con nr el .

JAMES \V. BRIGGS,
Division Chief, Schools Division, 

D O N O V A N  M. M AIN ,
Deputy Coun.y Counsel 

618 Hall o) Administration 
500 West ’I cinple Street 
Los Angeles, California 90012 
(213) 625-3611, Ext. 65643 

Attorneys for Amici Curiae.

W i e r c H N  p u l N T l N d  CO M PAN Y.  WHITTIKA---- O X I O W  » - l 7 i *

TOPICAL INDEX

Interests oi‘ Am ici .............. ............................ ..... .............  1

Statem ent..............................................      3

Summary o f  A rgu m en t.......................... ..... ........... _........ 6

Argument ..................................    10

I . The District Court Erred In A pplying  the 
“ Compelling Interest”  Test Rather Than A  
Less Onerous Standard o f Review In  Testing 
the Validity o f the Texas School Financing 
Law's ............................................................................  10

Page

A . The District Court, Tn the Course o f U n­
critically R elying Upon Serrano, E rron ­
eously Concluded That the “ Necessary to 
Prom ote A Compelling State Interest”  
Test Should P e A p p lie d .................................  10

B. In  Determining the Standard o f Review
to he Applied In  an “ Equal P rotection ”  
Case, all Pertinent Factors Should Be Con­
sidered ........................................................ ........  16

C. Consideration o f all Pertinent Factors In ­
volved in This Case Requires That A Less 
Onerous Standard o f Review' Should Be 
Applied In  Testing the V alidity o f the 
Complex Texas School Financing Laws 
Under the Equal Protection Clause .... .....21



11 Index

Page
1 . The Individual Interests Involved ...... 22

2. The Actual Character o f the Alleged
Classification .............................................. 27

3. Societal or Governmental Interests
Supporting or A ffected by the Texas 
School Finance System .............................  32

4. Consequences o f Frustrating Legisla­
tive and Congressional Attemps to Pro- , 
mote Educational Opportunities .....-...  37

5. The Ability o f the Courts to Fashion
and Enforce Fair and Appropriate 
Remedies .....................    40

D. Conclusion ............................     41

I I . The Texas School Financing System is  Valid 
Under Any Fairly Applicable Standard o f 
Review .......................................................................  42

I I I .  The -Monumental Task o f More Fairly A llo­
cating Financial Resources to School Districts 
Is Properly A Function to be Exercised B y 
the State Legislature and the Congress, and 
Not B y  the Courts ............................. .........— ...  58

D ifferences in Status Q u o .........................................-...  5S

Allowing for  Differences in Educational N eed s.... . 59

Allowing for Differences in C osts ...............................  61

Allowing for  Federal Grants and Private G if t s ....... 61

Index in

Allowing for Differential Services Rendered by 
State and Intermediate Educational Units ........ 62

Allowing for Innovation on “ Pilot P ro je c t”  Basis... 63

IV . The .Judgment I b low  Should Be Reversed 
Because the Order Granting the Injunction 
Lacks Specificity and Fails to Describe in 
Reasonable Detail the Acts Sought to be R e­
strained and Because o f Absence oi .. adispen-

Page

sible Dailies ........................ ................. 72

Lack o f Specificity ..................... ... ............. 72

Lack o f Indispensable Parties .. _______ __ 77

Conclusion ...................................... ... ............. 79

TAliLE OF CASES AND AUTHORITIES CITED
Cases

Askew v. Hargrave, 401 II.S. 476 91 S.Ct. 856, 28
L.Ed.2d 196 (1971) ............................................... 26, 27

Board o f Ed. o f Inch Sell. Dist., 20, Muskogee v.
Oklahoma, 409 F.2d 665 (1969) ................ 14, 26, 49

Brown v. Bd., 347 U.S. 483, 98 L.Ed. 873, 74 S.Ct.
686 (1954) ................................................. .............24, 78

Bullock v. Carter, 405 U.S. 134, 31 L .E d.2d 92,......,
92 S.Ct. 849 (1972) .............................. .........19, 20, 25

Burruss v. W ilkerson, 310 F.Supp. 572 (W .D . Va.
1969) ................................................................... 26, 55, 63

Carmichael v. Southern Coal Co., 301 U.S. 495, 81 
L.Ed. 1245, 57 S.Ct. 868 (1936) 26



r

iv Index

Carmichael v. Southern Coal Co., 301 U.S. 195, 81
L.Ed. 1245 (1936) ................................................. .... 14

. Dandridge v. Williams, 397 U.S. 471, 25 L.Ed.2d
491, 90 S.Ct. 1153 (1970) .............................19, 25, 35

Douglas v. California,,372 U.S. 353, 9 L.Ed.2d 811,
83 S.Ct. 814 (19031 ......................................... 19, 27. 29

Dunn v. Hlumstein, -101 U .S........ , 31 L.Ud.2d 274,
284, 92 S.Ct. 995 (1972) ......................................17, 19

General Am. Tank Car Corp. v. Day, 270 U.S. 367,
70 L.Ed. 635, 46 S.Ct. 234 (1926) ................. ........  49

G riffin  v. County School 13d., 377 U.S. 218, 84 S.Ct.
1226, 12 L.Ed. 2d 256 (1964) ............................ 24, 31

G riffin  v. Illinois. 351 U.S. 12 , .100 L.Ed. 891, 76
S.Ct. 5S5 (1956) .....................................  19, 24, 27, 29

Gunn v. University Committee to End. the W ar in 
Vietnam, 399 U.S. 383, 26 L.Ed. 684, 90 S.Ct.

Tage

2012 (1970) ..................................................................  73
Hal-grave v. Kirk, 313 F . Supp. 944 (1970) ..............  26
H argrave v. M cKinney, 313 F.2d 320, 324 (5th Cir.

1969) ............................................................... .......-.......  27
H arper v. State Hoard o f Elections, 383 U.S. 663,

16 Jj.Ed.2d 109, 86 S.Ct. 1079 (1966)... 19, 24. 27, 29
Hess v. Dewey, 348 U.S. 835 (1954) ...................... 14, 49
Hess v. Mullaney (9th Cir. 1954)

213 F.2d 635 ......................... .......................... 14, 26, 49
Janies v. Strange, 40 Tj.W .  4711, 4714 ......................  18
James v. Valtierra, 402 U.S. 137, 28 L .Ed.2d 678,

91 S.Ct. 1331 (1971) .................. 25, 29, 31, 33, 41, 54
Jefferson  v. H ackn ey,......U .S ......., 32 Jj.Ed. 2d 285,

92 S.Ct. ...... (1972) ............... .................. ........ 25, 35, 46

Index v

Jefferson  v. Hackney, 40 LAV. 4585 (1972) ............  19
Madden v. Kentucky, 309 U.S. 83, 84 L.Ed. 590,

(1939) .............................................................................. 57
McDonald v. Hoard o f Elections Commissioners,

391, U.S. 802, 22 L. Ld.2d 739, 89 S.Ct. 1404
(1969) ..........................................................-.... -....-19, 27

M elunis v. Ogilvie, 394 E.S. 322 (1969) ..............26, 55
M clnnis v. Shapiro, 293 E.Supp. 327 (N .D . 111.

1968) ............................................. .......... -......... 26, 55, 68
Metropolis Theatre Co. v. City o f Chicago, 228 U.S.

61, 57 L.Ed. 730 (1930) .................................... -.......  55
National Labor Relations Hoard v. Hell Oil & Gas

Co. (C.C.A. 5th 1938) 98 Fed. 2d 405 ..................  76
Pierce v. Society o f Sisters, 268 U.S. 510, 269 L.Ed.

1070, 45 S.Ct. 571 (1925) .............................24, 36, 48
Reynolds v. Sims, 377 U.S. 533, 81 S.Ct. 1362, 12

L.Ed.2d 506 (1964) ................... ..........................25, 31
Rodriguez v. San Antonio Independent School D is­

trict, 337 E. Supp, 280 (1972) .................................  2
Salsburg v. Maryland, 346 U.S. 545, 98 L.Ed. 281,

74 S.Ct. 280 (1953) ........................  t ............... 30, 31
San Ansehno Police O fficers As., et al v. City o f 

San Anselmo, et al. (M arin Co., Cal. No. 61302)... 4
Sehilb v. Kuobal, 40 LA V  7107 (1971) ......... ............. 18
Serrano v. Priest, 5 Cal. 3d 584, 487 P.2d 1241,

96 Cal. Rptr. 601....2, 3, 6,10. 11, 16, 2:), 27, 47, 50, 57 '
Shelton v. Tucker, 364 U.S. 479, 5 L.Ed.2d 231, 81

S.Ct. 247 (1960) ..........................................................  17
Swift Company v. United States, 196 U.S. 375, 49 

L.Ed. 518, 25 S.Ct. 276 (1904)

Page

76



VI Index

Tliaxton v. Vaughan (4th Cir., 19(i3) 321 F  2d 474 ^
473 ..................................  ’

W atson v. Buck, 313 U.S. 387  ̂ 85 1446...61 ?<
S.Ct. 962, 136 A LR  1426.................................  ’ 75

V  lllnnnson v Lee Optical Co., 348 U.S 483 99
L.Ed. 563, 75 S.Ct. 4 6 1 ........................ ’ 35

W isconsin v. Y o d e r ,......U .S....... , 32 L.Ed." 2d 15 "93

w  >Sf ; .....T (1972) ........................1 8 > -R  36, 37/ 48, 70
V  right v. Council o f the City o f Emporia, 40 Law

W eek 4806 ...... ................................................. ....-... 49

Authorities
Statutes
California Education Code,

§§894-894.4 ............. ..................
§§6450 ....... _..........._..............
§§6490-6493 ..... ...... ............ ............ ............ ............
§§6499-6499.9 ............. .............. •
§§6750-6753 ............. ............
§§6801-6822 ........... ....................
§§6870-6870.6 .............
§§6901-6920 .......
§6920 ........................ .....................
§§7001-7028 ................................
§17300 ......................
§§17651 ..............................
§§17901-17902 .................... ........
§§20800 ........................................
§§26401-26404 ...........................

Page

..............   47

.................. 46

.................  46

..... ...........  46
.......... ......  47
... -............ 47
.................  47
............ ..... 47
................. 47
................. 47
-...32, 45, 51
................. 43
............   48
...... ......32, 43
...... - .......  47

Index vii 

Page
Federal Rules o f Civil Procedure

Rule 65(d) ....... ...... .............................9, 7^  7^  7^  77

Hawaii Rev. Laws
§ § 2 9 6 -2 , 2 9 8 -2  (1968) ....................................... 2

Texas Education Code,
§§16.01 et set]............

^ 2u m .................................... A z r z r . . . ^ , «
§§16.74-16.78 ...................... .............

28 U.S.C. §1253 ................................................. ............  74

Legislative Materials

California Assembly Bill 1283 (1972) ..........65 A pp. B
California Senate Bill 1302 (1972) .............. ;j7> App C

Texts

Alternative Programs f o r  Financing Education, 
Vol. 5, The National Education Finance Project
(1971> ............................. ............................. -.................. 64

Averch, Pincus, et ah, H ow E ffective is Schooling ' 
(1972) ......................................................... .........._  23

Brest, Book Review, 23 Stanford
I,R ev . 591 (1971) ................................................. 49, 56

Butts & Cremin, A  History o f Education in Ameri- ’ 
can Culture (1 9 5 3 ).......................................  3?

California School Boards July/A ugust 1972 .......49



Index

Coleman Report, Equality o f Educational O ppor-"8 6 ' 
tunity (1<)(>6) ...................................................  23 2g

Coons, Chine i l l ,  Sugarman, Private W ealth and 
I uhlie J'-ducation (iu 7 0 )... 4, 5, 24, 28, 4J, 10-71, 78

Cremm. '1 lie Transformation o f the School (l<j(jl).„ 27
Garner, Excellence: Gan We Be Equal and Excel- * 

lent Too M  Phil) ...... ................. .................  7()

Goldstein, Interdistrict Inequality in School F i­
nancing: A Critical Analysis o f Serrano v. 
Priest and Its Progeny, 120 Univ. o f Penn L 11 
504 (1[r7L>) ..... ^  Cl, 14, 21, 2(5, 27, 28 (A pp. A )

Kurland, Equal Educational Opportunity: The 
Limits o f Constitutional Jurisprudence Undc- 
fil,cd (lyGS> ............................... ......................66-67, 70

Lee, An Introduction to Education in Modern 
America ........................ ......................  33

Mort, Reusser, Policy, Public School Finance
• '.............................................................. 5, 34, 51

Hosteller & Moynihan, “ A Pathbreaking- R eport”  
in On Equality o f Ed. O pportunity............. . 23

Strayer and Haig, Financing o f Education in the 
State o f New Y ork (1923) ................... ................. __ 5

viii

IN TH E

Supreme Court o£ tlje Cuiteb States
O rloh er T erm , 1971

No. 71-1332

SAN A N TO N IO  INDEPENDENT SCHO OL D IS­
T R IC T , ct al.,

Appellants,
vs.

D E M E TRIO  P. RO D RIG U EZ, ut al.,
Appellees.

O X  APPEA. FROM TIIK lA T IE I) STATES IJUS I RICJT C O U R T  
FOR 11 IT WESTERN D ISTR ICT OF TEXAS

B R IE F  OF AMICI GURIAE: RICHARD M. ( LOWES. SU P ER .  
INTENDENT OF SCHOOLS OF I HE COUNTY OF I OS 
a n g e l k s , HAROLD .1. o s t l y , t \ \  COI M-CTOU w n 
T O K A S..BK K  0 1 -  T in :  , III .N I V « ! ; ? : !  J L T f
i l ;N ,n i  !)  S ( : ,I ( , ( ) I - D IS T R IC T ; GLENDALE
UNIFIED SCHOOL D IS TR IC T; SYS MARINO LM E IE D  
SCIKHIL D IS T R IC T ; LONE REACH UNIFIED SCHO OL 

SOlJTH  RAY UNION HIGH SCHOOI DIS- 
,,,l ;V ,-RI.Y HILLS UNIFIED SCHOOL D IS TR IC T-

O F S<:,,O O L D ,S T R ,C T ’  A Li:

INTERESTS OF AMICI

■ Amici Curiae are ( ! )  the County Superintendent 
ot Schools and t h e  Treasurer-Tax Collector o f the 
County o f Eos Angeles who are charged with adminis­
tering certain aspects o f the California public school 
financing system as it affects local school government 
m  Los Angeles County, and (2 ) several school dis­
tricts in the County o f Los Angeles. Am ici are spon-



— 2—

so m l b-v Jolm T)- M ilia r - County Counsel o f Los An- 
- clcs Connty, their authorized law officer. Amici, with 
the exception of one o f the school districts, are all 
parties defendant (the school districts by way o f in- 
ten  ention) in the case o f Serrano v. Priest (Los An­
g le s  Superior Court Xo. C938254) which is now pro­
ceeding to trial in a California Superior Court, upon 
remand from the California Supreme Court. See Ser­
rano v. Priest, 5 Cal.3d 584, -187 P.2d 12-11 .% Cal 
R ptr.601.

I]i the action presently before this Court, the court 
below cited the opinion o f the California Supreme 
Court in Serrano r. Priest, supra (1971), in support 
o f its conclusion that Appellees are deprived of equal 
protection o f the laws under the Fourteenth Amend­
ment to the Lnited States Constitution by the opera­
tion o f the Texas public school financing system. Pod- 
nrjuez r. San Antonio Independent School District, 
337 F.Supp. 280, 2S1 (n. 1) (1972).

The school districts appearing as amici are charged 
with the operation o f  public schools within Los 
Angeles County, all o f which would be adversely af­
fected to a serious degree by application o f the rule 
u iged In Appellees and adopted by the court below. 
Ih e  rl exas public school financing system is substan­
tially similar to the system o f financing public schools 
in California.1

’ The California and Texas school financing systems are similar in effee' 
to the systems used in 49 of the 50 states. Hawaii is the only state without 
0 9 6 8 }k °°  ^lstnct contro* ° f  education. Sec Hawaii Rev. Laws, §§296-2, 298^2

—3—

Amici are gravely concerned that the “ equal pro­
tection standard of review as applied to state public 
school financing systems by the court below in this 
case, and by the California Supreme Court in Serrano 
r. Priest, supra, if  upheld by this Court, would place 
a constitutional straitjacket upon local school boards, 
state legislatures and Congress in their attempts to 
solve and adjust the myriad o f problems involved in 
the day-to-day and on-going operation o f this nation’s 
public school systems.

Amici believe that one o f the* geniuses o f the public 
school systems in America in general, and California 
in particular, has been the incentives for and abilities 
o f local school boards and state legislatures, democrat­
ically elected, to experiment and innovate in finding 
solutions to educational problems, many o f which are 
o f purely local concern and others which are o f un­
iversal application. The responsiveness o f the local 
school district to the needs, desires and problems o f 
the local populace would inevitably lie drasticallv im­
paired by application o f the constitutional rule o f law 
sought to be established by A ppellr--

STATEMENT

This case presents to this high Court fundamental 
questions concerning the drastic restructuring o f a 
state’s local governmental services, and the role to be 
Flayed by the judicial branch o f government in doing 
so. The impact o f the decision to be made in this case



4r

will be lelt not only by the thousands o f school dis­
tricts in -19 of the 50 states, but by reason o f the logi­
cal difficulties in distinguishing educational services 
troni other important governmental services provided 
by local units o f state government, the impact o f this 
decision will surely be felt by almost all such local 
governmental units with respect to their provision o f 
important services in their respective communities.2

The strategies employed in this case were fully 
mapped out in 1970 by Professor Coons and his asso- - 
eiates in their book “ Private Wealth and Public E d­
ucation.’ '3 This book was dedicated by its authors “ To 
nine old friends o f the children,”  and the validity o f 
the arguments contained in their book are now pre­
sented to this Court for determination.

Tt is this book that first presented the disarmingly 
simple formulation o f a proposed new principle o f 
“ equal protection”  constitutional law. Coons’ “ sim ple”  
formula is: “ The quality o f public education may not 
be a function o f wealth other than the wealth o f the 
state as a whole.”  (Coons, et al., supra, Footnote 3, 
Introduction, p. 2.)

It may be seen from the Order appealed from that 
the District Court below fully embraced this formula.''

-A  lawsuit challenging state and local legislation regulating the funding 
of police and fire proteetion sen ices on the basis of the Serrano rule has 
already been f. J in California. A "5>rr<itio” -type complaint, San Anselmo 
Police Officers Association, et al. r. The City of San Anselmo, et al., 61302, 
was filed on May 3. 1972, in the County of Marin.

3Coons, John P.. Chine III, Win. H., Sugarman, Stephen D., Private 
Wealth and Public Education, the Belknap Press of Harvard University Press, 
Cambridge, Mass. (1970).

•*337 F.Supp. 280, 285-286.

The California Supreme Court, the first to declare an 
entire state's system o f financing its public schools to 
he unconstitutional, likewise adopted Coons’ thesis."

The California Supreme Court emphasized in its 
Modification o f Opinion that inasmuch as the ease in­
volved an appeal from a judgment o f dismissal en­
tered upon the sustaining o f general demurrer to the 
Complaint, it was not a “  final judgment on the merits.”  
The Supreme Court remanded the case to the trial 
court with directions to overrule the demurrers and to 
allow defendants a reasonable time to answer. The 
Answer was filed on May 1, 1972, and the case is now 
being prepared for  trial.

As Coons points out, the system o f financing pul>- 
Jic schools which is here under attack is one o f many 
variations of the so-called “  foundation plan.”  The con­
ceptual basis for the “ foundation plan,”  the purpose 
o f which was to make adjustments in state contribu­
tions to public school districts within the state to ac­
count for district wealth variations, was originated by 
George 1). Strayer and Robert M. Haig in 1923.® The 
“ foundation plan”  as utilized by most o f the state? 
with numerous variations was developed by Paul R

r’Serrano v. Priest, 5 Cal.3d 584. 589, 187 P.2cl 1211, 96 Cal. Rptr. 601 
“ Wc have determined that this funding scheme invidiou discriminate 
against the poor because it makes the quality of a child’s education a functiot 
of the wealth of his parents and neighbors.”

uStraycr, G. D. and Haig, R. M.. Financing of Education in the State c 
New York (New York, 1923).

7Coons, supra, p. 63; Mort, P. R., Reusser, W . C. and Policy, J. \V 
Public School Finance, 3d Ed. (New York, 1960).



—6—

will not undertake to describe the “ founda­
tion p lan ’ * used in the State o f Texas, which is under 
attack here, as tins will no doubt be fully described in 
the briefs o f the parties to the suit. The California 
Foundation Program  is described by the California 
Supreme Court in Serrano r. Priest, 5 Cal.3d 584 591 
595. ’ 1 ’

SUMMARY OF ARGUMENT

1. 1 he District Court below erroneously held that 
the complex system o f laws providing for the financing 
o f the Texas public school system violates the ‘ ‘ equal 
protection”  clause o f (he Fourteenth Amendment to 
the United States Constitution. The District Court 
erroneously applied the onerous standard o f review 
whereby the defendants were required to carry the 
burden o f showing that its legislative classifications 
were necessary to promote compelling state interests. 
The first question to be resolved in this case is “ What 
standaid ot review is to be applied in determining the 
validity o f the complex public school financing law s?”  
In uncritically relying upon Serrano v. Priest, 5 Cal. 
3d 584, 487 P.2d 1241, 96 Cal.Rptr. 601, the District 
Court failed to consider vital questions and factors. 
The District Court should have carefully analyzed the 
alleged suspect classification o f wealth and noted that 
ihis classification involved wealth o f school districts 
niul not wealth o f people. The District Court should 
have noted that the alleged “ fundamental”  interest 
(quality o f education) allegedly affected by the alleged

—  i

“ wealth ’ classification was not an interest o f people 
in quality education but rather an interest in not beino- 
unduly burdened in paying taxes. The court failed to 
take into consideration, in determining its standard -of 
review, numerous other factors, including the individu­
al interests o f parents in directing the upbringing and 
( diu ation o ( their children, vital societal or government- 
al interests in permitting within reasonable limits local 
community control in making decisions affecting the 
schooling o f the children in the community and in al­
locating local public funds in support thereof, the ne­
cessity o f permitting the Legislature and Congress to 
remain free o f a constitutional straitjacket with re­
spect to their efforts to improve public education and 
make innovations therein, and the ability o f the courts 
to fashion and enforce fair and appropriate remedies 
as compared with the ability o f the Legislature and 
Congress to deal with the complex and rapidly changing 
problems in public education. Applying all these con­
siderations, the standard o f review to be applied to 
this complex set o f school financing laws must lie less 
onerous than the one applied by the District Court.

2. Under any standard o f review w h i c h  might 
fairly and reasonably be applied to the complex school 
financing laws of Texas, the laws are valid under the 
equal protection clause. The people o f Texas, including 
the parents o f children attending public schools in that 
state, have expressly attempted to preserve and pro­
tect, through their financing system, their compelling 
interest in assuring essential educational services for



—8—

aH C,n!(lrtm’ w1,1lc at the same time making appropriate 
accommodations to the vital interest o f parents in local 
communities in the course those educational services 
take. The individual, societal and governmental inter­
ests served by the Texas school financing laws are not 
merely important, they are compelling. This is true 
especially when it is considered that the school financ­
ing laws are necessarily complex if  they are to attempt 
to make provision for the differing educational needs 
o f students, and the inability o f plaintiffs to establish 
feasible and better alternatives to meet those differing 
educational needs while accommodating a reasonable 
degree of local decision-making with respect to the ed­
ucation o f  the children. The classifications made in the 
school financing laws o f Texas promote these compel­
ling interests in such a way as to satisfy any realistic 
standard o f judicial review.

3* Independent o f the foregoing, the monumental 
nature o f the task o f more fairly allocating financial 
resources o f the state among the school districts is one 
which the courts are not equipped to tackle. This ne­
cessarily complex, t i g h t l y  interwoven and rapidly 
changing set o f laws calculated to approach excellence 
in the providing o f educational sen-ices to students 
o f widely varying educational needs, is such that only 
the Legislature, local school boards, and Congress are 
equipped to handle. The resources available to them 
far outstrip the resources available to the courts to 
deal with these complexities. These problems are far 
better tackled by experts working together t o w a r d

common goals than by courts relying upon the service 
o f experts in adversary proceedings. W ere the court 
to undertake the staggering- task ol closelv monitorinj 
efforts o f the Legislature, school boards and Congres 
with respect to their efforts to improve the qualitv o 
public education, they would to that extent eneourag 
those bodies to deem themselves absolved o f their re 
sponsibilities, with the further adverse consequence o 
subjecting the results o f such efforts as they migh 
continue to make to extreme uncertainty, with result 
ing,doubts as to the validity o f school district taxes ant 
contractual commitments. The courts should accord 
ingly exercise judicial restraint a n d  evidence thei: 
faith in tiie democratic, processes, the arena in whirl 
solutions to these complex problems have historic-alb 
and are now being hammered out.

-1. In any event, the judgment below should be re 
versed because the order granting the injunction lack, 
specificity and fails to describe in reasonable detai 
vdiat the defendants must do in order to avoid tin 
drastic contempt remedy available to enforce the order 
The order, in enjoining the defendants from giving am 
force or effect to the Texas seho, * ' emeing law s^ in  
sofar as they discriminate against plaintiffs and other- 
°n  the basis o f wealth other than wealth o f the State 
us a whole,”  clearly fails to comply with the require­
ments o f Section 65(d) o f the Federal Rules o f Civil 
Procedure. In further ordering that named defendant* 
Ik* ordered to reallocate the school funds “ in such a 
manner as not to violate the equal protection provisions



—10

of both the United States and Texas Constitutions ” , 
the order even more dearly violates the provisions o f 
Uule 65 (d ). The Judgment below should also be re­
versed because o f failure o f the plaintiffs to include as 
defendants those authorized by law to carry out an e f­
fective decree, namely, the Legislature and the Gover­
nor.

a r g u m e n t

I

THE DIS1RICT COURT ERRED IN APPLYING THE 
“ COMPELLING INTEREST”  TEST RATHER THAN 
A LESS ONEROUS STANDARD OF REVIEW IN 
TESTING THE VALIDITY OF THE TEXAS SCHOOL 
FINANCING LAWS.

A. The District Court, in the course of uncritically 
relying upon Serrano, erroneously concluded 
that the “ necessary to promote a compelling slate 
interest test should he applied.

The District C om ! below followed the decision o f 
the California Supreme Court in Serrano v. Priest, 5 
Cal.Jd 584, 487 P.2d 1241, 96 Cal.Rptr. 601 (1971) in 
determining that the onerous “ compelling interest”  
test should be applied in determining the validity or 
invalidity o f the system o f laws o f the State o f Texas 
making provision for the financing o f t h e  p u b l i c  
schools. In footnote 1 the District Court stated: “ Sor­
iano convincingly analyzed discussions regarding the 
suspect nature o f  classification based on wealth . . . ”

— 11—

(237 F.Supp. 280, 281.) (P rofessor Goldstein o f tl 
University o f Pennsylvania has written a most pei 
otrating analysis of the elusive principles o f law ii 
voiced in Serrano r. Priest, which amici believe t 
be so valuable in analyzing the issues involved that w 
attach a copy o f his article, “  I nterdist rict Inequalit 
in School Financing: A Critical Analysis o f Serrano i 
Priest and Its P rogeny,”  120 Univ. o f Penn. U P . 50 
(1972). (See Appendix A .) The extreme important 
ol this case appears to amici to provide complete just: 
fication lor commending to this busy Court that it rca 
Professor Goldstein’s thought-penetrating analysis.)

In relying heavily upon Serrano, the District Com 
did so uncritically. It failed to note, for example, tha 
the case came to the California Supreme Court by wa 
oi appeal from a .judgment o f dismissal entered afte 
sustaining the defendants’ general demurrers, and tha 
accordingly the California Supreme Court assume, 
that all material allegations in the complaint were true

Thus, the Supreme Court assumed for the purpose 
o f its decision that different levels o f educational ex 
penditure affect the quality o f education. (5 Cal 3d 584 

14> (m  n- 16, 487 P.2d 1241, 1251, 1253.) TP 
California Supreme Court specifically noted that thes. 
were matters which would be the subject matter o 
proof in tlie trial court upon remand.

The California Supreme Court also assumed for tin 
purposes o f  its decision the truth o f p la in tiffs ’ allega 
tion that there is a correlation between a district’s pei



12—

l ,ul)il assessed valuation and tlie wealth o f its resi­
dents. (5 Cal.3d 584, bOO-GOl, 487 P.2d 1241, 1252.)

The District Court below, in failing to set forth 
any determination iiiat higher expenditures for educa­
tion result in better education, apparently relied upon 
the Serrano decision, which, as indicated, assumed 
. . . the truth o f  that proposition without deciding it 
because the case arose by way o f demurrer.

As pointed out by Goldstein (A pp. A , pp. 2(>-2P) 
research reports so far have found little relationship 
between expenditure levels and the educational outputs 
measured, when other variables were held constant, 
and since Serrano sent the matter back to the trial 
court, ‘ ‘ the issue still remains open for proof, proof 
that does not appear to be available.”

The significance o f the lack o f proof in the District 
Court below and in Serrano is that plaintiffs have 
failed to satisfy their burden of proof as to the cost- 
quality correlation in order to invoke the ultimate con­
stitutional principle which they urged upon, and which 
was adopted by, both courts, i.e., “ The quality o f public 
education may not be a function of wealth other than 
the wealth o f the state as a whole.”  (Goldstein, App. 
A , p. 14.) To u t educational expenditures into this 
formula, it becomes necessary to equate educational 
spending w i t h  quality o f education. The District 
C ourt’s uncritical reliance on Serrano to equate these 
two factors was thus unwarranted.

—13

The District Court below also lacked adequate basi 
for its conclusion t h a t  the '1'exas financing systei 
draws distinctions based upon the wealth o f its cit: 
zens, in relying upon Serrano  and upon an affidavi 
submitted at trial. As noted in Goldstein (A pp . A, ] 
33), the alfidavit relied upon by the District Com 
‘ ‘ was a questionable source; a careful reading o f tb 
data contained in the affidavit creates grave doubt 
about the validity o f its conclusions.”

.The fact o f the matter is that both Serrano and tk 
Rodriyacz courts relied upon the extremes presente 
by statistics, failing to take account o f the peculiarity 
which might be involved in those extremes and ignoi 
ing the clustering o f the data between the extremes.

It must be readily apparent that some o f the pec 
plo In ing in at least some of the ‘ ‘ poorer”  school dis 
Diets are richer than some of the peopk.- living in son: 
of the richer’ school mstricts. 'there is nothing o 
the face o f the Texas school financing laws •. ..a-h draw 
a distinction in distributing the State largesse anion 
the districts which diminishes or withholds its alloc; 
lions based on low wealth o f any individuals. 'The legi: 
lative classifications make no invidious diseriminatio 
against people based on their wealth, but rather di: 
tribute state school funds to the districts in such a wa 
that districts with lower tax bases are in some case 
unable to raise the same number o f dollars per pup 
as those with higher tax bases. I f  there is ‘ ‘ wealth di: 
elim ination”  in t h e  State financing s y s t e m ,  it : 
against districts, not people.



— 14

The districts, as political subdivisions o f the State, 
enjoy no protection under the equal protection clause 
against actions o f the state.8 Those who have standing 
to complain, people, are not discriminated against “‘ on 
the basis o f their wealth.’ ’ The so-called “ suspect 
classification o f wealth”  relied upon in Serrano and 
Rodriguez, simply does not exist as to those who bring 
this action and, accordingly, there is no basis for in­
voking the “ compelling interest”  test.

The Rodriguez court also faded to note that the 
wealth classification cases relied upon in Serrano were 
cases involving total denial o f important rights to in­
digent persons, such as the right to vote or to he free 
from  imprisonment as a result o f criminal prosecution. 
Here, the question is not one o f denying to the poor or 
to any person the important right to he educated, but 
rather the question o f the extent to which the states 
may exercise discretion in distributing state funds for 
education differentially in different territories o f the 
state. Actually, both Texas and California distribute 
more state funds per pupil to those districts with lower 
assessed valuation per pupil; what the plaintiffs com­
plain about is that the State does not discriminate 
enough against people living in wealthy areas in favor 
o f those living in poorer areas.® As pointed out in Gold­
stein, A pp. A, p. -1.8:

sCarmichael v. Southern Coni Co., 301 U.S. 495, 31 L.Ed. 1245 (1936); 
Hess v. Mullaney (9th Cir. 1954) 213 F.2d 635, ccrt. den. sub non. Hess v. 
Dewey, 343 U.S. 835 (19 54 ); Board of Ed. o/ Ind. Sch. Dist., 20, Muskogee 
p. State of. Oklahoma (10th Cir. 1969) 409 F.2d 665.

®Would plaintiffs’ argument n; . also constitutionally require California to 
more steeply graduate its income tax rate (presently 1 to 10 % )?

“ The real problem is the individual taxpayer’s 
d ifficu lty  in paying his tax bill. If Serrano labels 
relative deprivations among districts unconstitu­
tional, then does its logic not require elimination 
o f disproportionate sacrifice among those who pay 
the tax ! Does the former proposition even make 
any sense without the latter t

“ I f  there is a constitutional vice created by the 
differential ability of taxpayers to meet their ob­
ligations, does this then mean that proportional, 
or even progressive, taxation is constitutionally 
compelled? It is doubtful that the Serrano court 
meant to suggest this outcome. Nevertheless, with­
out such a conclusion it is d ifficu lt to understand 
why it is unconstitutional to have a system where­
by one district can more easily raise revenue that 
another. It is indeed probable under present f i­
nancing systems, including that o f California, that 
the average resident o f a rich district pays higher 
taxes, in terms of gross dollars, for his schools that 
does the average resident of a poor district, despit* 
the fact that the resident o f the rich district i: 
taxed at a lower rate. This may be the result ol 
the higher assessed valuation and, perhaps, large] 
average property holdings o f the individual tax 
payers in the rich district. A * relation may ever 
exist between the amount o f tax dollars paid Ip 
the average resident o f a district and the eduea 
tional expenditures o f that district. I f  this is so 
the d ifficulty is not with disproportionate pay 
merits but with inequitable taxation, not only ir 
the hypothetica l above, but also in the existim 
financing schemes. The logic o f Serrano, which in 
validated these existing financing schemes, ma;



— 15—

therefore require the wealthy taxpayer to hear a 
greater burden than just having to pay more tax 
dollars than the poor. Instead it may demand at 
least a proportional tax system, and possibly one 
that is progressive.”

li. In determining the standard of review to he ap­
plied in an “ equal protection”  ease, all pertinent 
factors should he considered.

'Phis ease presents to this high Court an unparal­
leled opportunity to initiate the establishment of more 
delinitive guidelines for determination o f the degree 
o f closeness o f judicial scrutiny to be applied in cases 
impugning the validity o f statutes under the equal pro­
tection clause o f the Fourteenth Amendment to the 
United States Constitution. The complexity o f the 
public school financing laws o f the State o f Texas, and 
other elements in this case hereinafter analyzed, dem­
onstrate the need for more definitive guidelines in es­
tablishing the all-important standard o f review to be 
applied.

As previously noted, the Court below relied heavily 
on the reasoning o f the California Supreme Court in 
Serrano v. Priest, 5 Cal.dd 584, 487 lY2d 1241, 96 Cal. 
lip tr. 601 (1971). Serrano reasoned that a “ suspect 
classification”  (wealth) taken together with a “ funda­
mental interest”  (education) automatically invokes ap­
plication o f the “ compelling interest”  test. Under this 
test, the state must show that the classifications made 
by the legLA non in question are necessary to promote

17-

a compeUiny interest o f the state. (Dunn r. Bhunstei) 
405 U.S. 330, 31 L.Ed.2d 274, 284, 92 S.Ct. 995 (1972). 
I f  there are other reasonable ways to achieve compel 
ling state interests with a lesser burden on constiti; 
tionally protected activity, a state may not choose th 
way o f greater interference; it must choose “ less dras 
tic means.”  (31 L.Ed.2d at 285; Shelton v. Tucker, 56 
U.S. 479, 188, 5 L.Ed.2d 231, 237, 81 S.Ct. 247 (1960).

But it is backwards reasoning to conclude from th 
combination o f a "suspect classification”  and a “ fund 
a mental interest”  that the onerous “ compelling in 
terest”  test is to be applied.,u Father, the first questio: 
to ask in any equal protection case is “ What standar 
o f review is to be a p p lied /”  As stated in Bullock < 
Barter, 405 U.S. 134, 31 L.Ed.2d 92, 99, 92 S.Ct. 84 
(1972):

“ The threshold question to be resolved is whethe 
the filing fee system should be sustained if  it ea 
be shown to have some rational basis, or whethe 
it must withstand a more rigid standard o f rc 
view. * * * “ In approaching candidate restrictions 
it is essential to examine in a realistic, light the e.\ 
tent and nature o f their impact on voters.”

|( Dunn i' Mumsttin, sujtro, Mr. Chief Justice Binder dissenting stated
“ In both casts some informed and responsible persons are denied the vot 
wlulc others less informed and less responsible are permitted to vote Son 
lines must be drawn. T o  challenge such lines by the ‘compelling state i.ucres 
standard is to condemn them all. So far as I am awaie, no state law k 
ever satisfied this seemingly insurmounatble standard, and I doubt ore css 
will, for it demands nothing less than perfection.”  (31 L.Ed.dd at 296.)

To which may be added, perfection is not the standard of excellence th, 
can be expected of our democratic and republican processes as carried on l 
legislative bodies comprising elected representatives of peoples with wide 
varying and competing interests.



18—

That more than a simplistic approach to the stan­
dard o f review is and should be required, is further 
evidenced by the recent pronouncement o f this Court
in Wisconsin r. Yoder, 405 U .S ........., 32 L.Ed.2d 15,
24, 92 S.Ct. 1520 (1972), in which the Court stated:

“ Tims, a State's interest in universal education, 
however highly we rank it, is not totally free from  
a balancing process when it impinges on other 
fundamental rights and interests, such as those 
specifically protected by the Free Exercise Clause 
o f the First Amendment and the traditional inter­
est o f parents with respect to the religious up­
bringing o f their children so long as they, in the 
words o f Pierce, ‘ prepare [them] for additional 
obligations.’ 20S U.S. at 535, 09 L.Ed. at 1078.”

See also Schilb v. Kucbcl, 40 LAV. 4107; James 
v. Strange, 40 LAV. 4711, 4714.

In view of the extreme importance of the standard 
o f  review to be applied, and in view of the extreme un­
certainty as to the meanii.0 of the term “ fundamental 
interest,” 1’ it seems apparent that the courts should 
not blind themselves to any relevant factors in determ­
ining the standard o f review to be applied.

This Court has wisely limited application o f the 
onerous “ close scrutiny”  standard o f review to cases

n jt  may be extremely difficult in future rases to distinguish between public 
education on the one hand, and a host of governmental services on the other 
hand, with respect to the “ fundamental”  character of the interests involved, 
e.g., health, welfare, police, fire, and sanitary services. The courts should leave 
themselves open to examine these important governmental services in the light 
of all relevant considerations in determining* whether or not they are to be 
subjected to the virtually impossible burdens of the “ compelling interest”  test.

in which inherently suspect classifications and we 
recognized fundamental interests arc clearly and do: 
initcly involved and affected. (See (i rtf fin e. Iihnoi 
351 U.S. 12, 100 L.Ed. 891, 7(> S.Ct. 585 (1950) ; Doiti 
fas v. California, 372 U.S. 3,53. 9 L.Ed.2d 811, 83 S.C 
814 (1903); Harper r. State Board of Elections, 3!: 
U.S. 003, 10 fj.Ed.2d 109, 80 S.Ct. 1079 (1900) ; Ballot
v. C a r te r ,  405 U.S. 134, 31 fa.Ed.2d 92. ......  92 S.C
849 (1972); and Dunn r. Bhnnstein, 405 U.S. 330, 1 
L .E d.2d 274, 284, 92 S.Ct. 995 (1972).)

In determining the standard ot review to be a 
plied in air equal protection case, and in this case i 
voicing extensive and intricately interwoven laws pi 
A iding the system for financing the schools o f the Sta 
o f Texas, the Court should carefully consider (1 ) t 
character o f each interest allegedly affected by the k
islation, (2 ) the degree to which each interest is i 
fected, (3 ) the interrelationship o f each basis o f t 
legislative classification in question with each basis 
reason for determining whether the interest a fled  
is so vital as to be denominated as “ fundamenta 
(4) the anticipated impact o f judicial intervention 
the societal or governmental interests promoted by 1 
legislation, and (5 ) the ability ol the courts to fash 
and enfore a fair and appropriate remedy. (Butloci 
Carter, supra, McDonald r. Board of Elections Cc 
missioned, 394 U.S. 802, 22 L.Ed.2d 739, 89 S.Ct.’ 1- 
(19G9); D and ridge v. Williams, 397 U.S. 471; Jeff 
son v. Hackney, 40 LAV. 4585 (1972); Dunn e. Bh  
stein, 405 U.S. 330, 31 L.Ed.2d 274, 284, 92 S.Ct. !



20—

(1972).) Tims, for example, in Bulloch• i\ Carter, the 
Court carefully analyzed the effect o f the Texas candi­
date filing fee system on all interests affected, includ­
ing the rights o f individuals to vote, before concluding 
that close judicial scrutiny was required because the 
system had both a “ real and appreciable impact on the 
exercise o f the franchise’ ’ and a relation to the “ re­
sources o f the voters supporting a particular candi­
date.’ ’ (405 U.S. 134, ..... , 31 17.Ed.2d 92, 100.)

When all o f the foregoing factors are carefully con­
sidered and their interrelationships analyzed, amici 
submit that it becomes clear that some standard of 
equal protection review less onerous than the “ neees- 
sarv to promote a compelling state interest’ ’ test should 
be applied to the complex and vitally important school 
financing laws o f the State o f Texas.

► In  sum, the first question to ask in approaching 
an equal protection case such as this is “ W hat stan­
dard o f review is to be applied / , and all relevant 
considerations should be taken into account, inasmuch 
as deciding upon the standard o f review is virtually 
to decide an equal protection case.

C. Consideration o f all pertinent factors involved in 
this case requires that u less onerous standard of 
review he applied in testing the validity of the 
complex Texas school financing laws under the 

equal protection clause.

Professor Goldstein’s article (A pp . A )  points up 
the opportunity to sharpen the judicial tools available 
in determining the standard of review to be applied in 
equal protection eases. This case presents such an op­
portunity inasmuch as the statutory scheme challenged 
here on the basis o f the equal protection clause is much 
more complex and presents much greater difficulties 
than were presented in the cases utilizing the “ close 
scrutiny”  test, primarily the school desegregation 
eases, the reapportionment cases, and the cases dealing 
with the rights o f persons accused o f crime to free 
transcripts or free counsel.

Goldstein’s approach is that it is not appropriate 
to simply examine the legislative classiiieations, the 
interests affected thereby and the degree to which the 
interests are promoted by the means adopted by the 1 
Legislature. Goldsein’s approach, and we submit it is 
correct, is that each busts of tL * -islative classitica-j 

‘ tion in question is to be examined with respect to its 
relationship with each basis or reason lor determining 
that the interest affected is so vital as to be denomi­
nated as “ fundamental.”  (A pp. A, pp. 2(5, et seq.)

Accordingly, utilizing the approach o f considering 
all relevant factors in the light o f Goldstein’s stages-



— 22—

tioiiis, wo turn to examine those factors relevant to de­
termining the appropriate standard o f judicial review 
to be applied in this case.

1. rile individual interests involved.

The lower court in the instant case found that “ the 
great significance o f education to the individual”  was 
further justification for application o f the demand­
ing close scrutiny test. (227 F.Supp. 280, 282.) No­
where in its opinion, however, does the court identify 
or analyze the extent to which this interest o f the in- 
di\idual is affected by the Texas financing system or 
the extent to which any adverse effect can or will be 
remedied by the Court's judgment.

There is no contention in the instant case that the 
Texas school finance system operates to deny an edu­
cation to any individual or group o f individuals. In­
deed, it is at once apparent that the Texas financing 
system, as does C alifornia ’s, guarantees what the Leg­
islature has determined to lie minimum essential edu- 
( ational financing for each pupil through the Minimum 
Foundation Program  (Texas Ed. Code §§16.01, et 
s o q . )  1 he people of J.exas, therefore, have not simply 
undertaken to provide for  public schools but have as­
sured support for essential educational programs for 
each individual attending those schools.

Since it is readily apparent that the financing svs-

. ’ i Ca!!/ornia's Foundation Program formulas arc found at 5517651-17680 
1 /702, 17901 and 17902 of the California Ed. Code. ’

-23—

tern does not deny any individual an education, it seems 
necessary to consider the extent to which the financing 
system impairs or effects that interest, if  at all. The 
court below apparently did not consider the impact o f 
the financing system on the education an individual 
receives.13

The empirical data amassed in continued efforts 
to determine factors positively correlated to measur­
able educational outputs have, to date, failed to sup­
port any 1 hidings oi affirm ative correlation between 
expenditure levels and education outputs. The Cole­
man report,*1 the findings o f which have recently been 
reaffirm ed,1'1 found that the expenditure levels and re­
source's o f a school system, and even the system itself, 
have little if  any true effect upon educational .achieve­
ment, and that the two m ajor determinants o f educa­
tional achievement are the family background o f the 
student and influences o f his peer group. (See Cole­
man, et al., EqunlUij of Educational 0 pjjortaniltj, U.S.

1 ■'•Nowhere in its opinion doer the court below discuss the effect of the 
financing system on the education that is afforded individuals by the Texas 
school systems. Instead, the court appears to focus solely upon the disparities 
m tax rates, property valuations, and expenditures, and upon the relative abili- 
ttes of wealthy" and “ poor”  districts to raise additional funds over and above 
the foundation Program amounts. The California Supreme Court in Serrano 
v;  Frterf, was not confronted with this issue, due to the procedural status of 

• that case. As stated by the Court:
“ Defendants contend that different levels of educational expenditure 

do not affect the quality of education. However. ..iatiffs’ complaint 
specifically alleges the contrary, and for purposes of testing the sufficiency 
of a complaint against a general demurrer, we must take its allegations 
to be true.’ Serrano v. Priest, 5 Cal.3d 584, 601 487 P 2d 1241 * 1253 
96 Cal.Rptr, 601, ......, n. 16.

"Equality of Educational Opportunity, U.S. Dept, of H E W  U S Govt 
Printing Office (1966).

"M osteller & Moynihan, "A  Pathbreaking Report” in On Equality of Ed. 
Opportunity, pp. 36-4d ; see also Avcrch, Pincus, ct al., Hew Effective 
Schooling? (Rand Corp. 1972). n ow  tttective h



— 24-

r)ept. o f ILE .W ., U.S. Covt. Printing O ffice [1960] 
at p. 325.)

Coons and his associates make it crystal clear that 
when they refer to “ quality”  o f public education in the 
first term of their formula, they are referring to 
money, and not to actual educational outputs.10

W hile there is no question that education is an in­
terest o f vital importance to both the individual and 
society in general.17 there is nothing in the record o f 
tins case nor the literature and studies in the field o f 
education to indicate that these interests are adversely 
affected by a school financing system such as the one 
in question. Unlike the cases involving rights to crim­
inal process and voting rights, where the evil to he 
remedied1* could easily be seen to substantially impair 
the individual interest involved, there is no reliable

" ' “ If we are to speak of equality, we must first reckon with quality. 
There must be some standard for judging whether education is better in 
one district than in another. We base already distinguished two basic 
views of equal opportunity--the objective school concept and the sub­
jective child-performance concept- and the difference is relevant here. 
Having chosen the objective standard, the measure of quality becomes 
not what is achieved but what is available. This way of stating the issue 
very nearly dictates the answer. What is available becomes whatever 
good;-, and services are purchased by school districts to perform their task 
of education. Quality is the sum of district expenditures per pupil; 
quality is money.

“ This approach may appear excessively formal, but it has significant 
advantages. Its employment reduces the problem of quality to manage­
able simplicity. . . .

*  *  *

“ The formal dollar standard for measuring quality would suffice as 
a basis for our central theme, that wealth must not determine the qual­
ity of public education; indeed, it is an integral part of that theme. . . ." 
(Emphasis theirs; Coons, ct ah, Private U’ealth and Public Education, 
supra, pages 25-26.]

17Brown v. Bd., 347 U.S. 483, 93 L.Ed. 873, 74 S.Ct. 686 (1954 ); Pierce 
v. Society oj Sisteis, 268 U.S. 510 (1925); Wisconsin v. Yoder, 32 L.Ed.2d 
15; Griffin v. County School Bd., 377 U.S. 218 (1964).

'■"c.g.. denial of transcript, Griffin v. 111., 351 U.S. 12 (1956) and at­
torney, Douglas v. Calif., 372 U.S. 353 (1963) to indigent defendants; denial 
of vote to indigents— Harper v. St. Bd. of Elections, 383 U.S. 663 (1966),

data which indicates that the “ evil”  o f the financinj 
system sought to lie restructured by plaintiffs— d iffe i 
ential availability o f financial resources per p u p il- 
has any adverse effect on an individual’s interest i 
education.

Legislation affecting the right o f a person to ava 
himself o f governmental services, such as educatioi 
has not been, and should not be, subjected to the sate 
closeness o f judicial scrutiny as legislation affoctin 
the constitutionally protected right to vote, the torn 
tainhead o f all our rights. Indeed, other interests siu 
as the individual’s right to subsistence and shelb 
would appear to have at least as substantial an effe  
on an individual’s opportunities to survive and succet 
in society as education. Yet, this Court has determini 
that legislative enactments affecting these latter int€ 
ests are not subject to strict judicial scrutiny. (Da 
dridfje v. Williams, 397 U.S. 471 (1970); Jefferson
Hackney, .....  U .S........ , 32 L.Ed.2d 285, 92 S.Ct. ..!
(1972); James v. VaUierra, 402 U.S. 137, 28 L.Ed. 
678, 91 S.Ct. 1331.)

Actually, ilia interest o f individuals upon which 1 
court below focused appears to he the individual 
tcrest o f local property taxpayers in achieving the sa 
ability to raise tax dollars for education as other t 
payers with the same tax rate, regardless o f vary 
property valuations. The logical conclusion, if  this 
terest were to be accorded favored constitutional }

— 25-

dilution of voting power, due to malapportionment Reynolds v. Sims, 
U.S. 533; and primary filing fee requirements, Bullock v. Carter, 405 
134, 31 L.Ed.2d 92, 92 S.Ct. 849 (1972).



—26—

tection, would appear to be that progressive taxation 
is compelled.1" This Court has held, however, that the 
benef its to which a taxpayer is constitutionally entitled 
are those derived from  his enjoyment o f the privileges 
o f living in an organized society, established and safe­
guarded by the expenditure of public monies for public 
purposes, and that the benefits received need not be 
porportional to the burdens imposed by taxation, (Car­
michael r. iSouthern Cool ( o., <101 U.S. 49o, 81 U.Kd. 
1245, 57 S.Ct. 86S.)20

The many factors involved in the individual tax­
payer ’s choices as to government services to he pro­
vided by his taxes, and the relative abilities among tax- 
pavers to pay for those services which affect the tax 
rates o f local school districts, were recognized by the 
courts in Me! uni.s' v. Shapiro, 293 F.Supp. 327 (N .D . 
111. 1968) a f f ’d. sub nom. Mclnnis v. Ogilvie, 394 U.S. 
322 (1969), and Bit miss v. Willccrson, 310 F. Supp. 
572 (W .D . Va. 1969) aiT’d. 397 U.S. 44 (1970).21

,slGoldstein, App. A, p. -19.
""Also, it has hern held that distribution and utilization of property taxes 

is a matter within the discretion of the state, and that use of taxes in the 
county or district where they were raised does not constitute an invidious 
discrimination or an unreasonable classification.■ ? l  { ‘.‘L s U  , 0 f r
Diil 20 Muskogee r. Slate of Oklahoma, a09 I’ .2d 665. 6611 (10th Cir. 1.T • 
Hess i/Mullaney,  215 F.2d 655. 639-10 (9th Cir. 1951).)

21 The three-judge court in Hargrave v. Kirk 313 F.Supp. 
reversed on other grounds sub nmn. Askew r. Hargrave -101 U.S. -1/6, dis­
tinguished the operation of the Florida Village Rollback Act from the financing 
system involved in Mclnnis on the basis that the property tax ceiling estab­
lished by the Florida Act prevented local districts from raising more money 
locally to finance their children’s education, thereby requiring them to spend 
less even if they desired to spend mare. This vice is not present in the lexas 
or" California financing systems, which are essentially identical to the systems 
of Illinois and Virginia. The Hargrave court stated, at 313 F.Supp. 944 at 
949 • “ Irrespective of the plaintiffs' Successful attack on the A s. know 

that there will continue to be disparities in per pupil expenditures in 
Florida, either because some counties may not desire to spend as much

Indeed, it lias been noted that the economic burdei 
o f the average resident of a so-called 'rich school dis 
{n e t  may he greater than that o f the average vesider 
o f a poor district, because lie pays higher taxes in tern 
o f gross dollars for  his schools and, in addition, tt 
cost o f his child's education may be substantially r 
fleeted in the price of his home."

2. Tlu* actual character of the alleged cla^sith 
tion.

The three-judge District Court. rolling upon 1 
direction o f the California Supreme Co :t in Scrn, 
v. Priest, supra (337 F. Supp. 280, 281 n. 1 ) / J and ’ 
line of U.S. Supreme Court criminal process and v 
ing rights cases24 recognized i.. Hargrave r. McK iub 
413 p\2d 320, 324 (5th Cir. 1969). (on remand, 11 
grave v. K ir i,  313 F. Supp. 944 [M.U. Fla. 1970], 
cated on other grounds sub nom., Ashe to v. Ilargrt 
401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 [197 
determined that the Texas school financing s\steir 
volves a classification based upon “ wealth.”  This cj 
ifieation, wlten affecting a fundamental inte 
'was held to require close y / '  ial scrutiny o f tin
naneing system (337 F.Supp. 280, 282-

as other counties on the education of their children, or because 
poorer counties, they cannot. Plaintiffs do not contest the vai 
in per pupil expenditures from these causes, but only the uneqi 
pediment placed on us by the state because we arc “ poor.  ̂ >'
sider this to be a fundamental distinction between the ca-es.

22’Goldstein, App. A, pp. 48-49, n. 91.
23“ Serruno convincingly analyzes discussions regarding the suspect 

of classifications based on wealth . . i" (337 I .Supp. at 281, n. 1.)
■uHarper v. Va. State Bd. of Elections; Douglas v. Calif.; Griffin 

inois supra, n. 18; McDonald v. Bd. of Electron Cornm’rs., 394 U.S. 
i  fhV i 73Q 89 S.Ct. 140-K 1969).



Apparently, the District Court found, as did Ser­
rano, that the financing system classified .school dis­
tricts according to wealth, in that it permits “ citizens 
o f affluent districts to provide higher quality educa­
tion for  their children, while paying lower taxes, . . . ”  
(337 F.Supp. 230, 285.)'"

1*1*0lessor Coons and associates freely concede that 
the “ wealth”  to which they refer in their simple form ­
ula is the wealth o f school districts, and not the wealth 
o f persons or families. They state:

r

“ W e have noted at several points that, in the 
school finance issue, the poverty involved is al­
ways that o f the district and only sometimes 
(though usually) that o f the individual.” 28

Amici submit that the lower court s determination 
that the Texas financing system involved a suspect, 
classification based upon “ wealth”  is incorrect because
(a ) the court erroneously relied upon the so-called ‘ de 
facto wealth classification" cases decided by this 
Court,27 (b ) classification o f school districts by wealth, 
i f  such a classification exists, does not constitute a

- ' ‘The District Court also noted an affidavit showing statistics concerning 
110 of the State's 1,200 school districts and compared the median family in­
comes of families in’ the richest ten districts with those in the four poorest 
districts for the year 1960. Its conclusion that “ those districts most rich m 
property also have the highest median family income and the lowest per­
centage of minority pupils, while the poor property districts are poor in 
income. (337 F.Sup. 282) is seriously questioned in Goldstein, App. A,
pp 33-34 wherein he notes that among the three groupings of the remain­
ing 96 school districts the data even shows an inverse relationship between 
median family income and district tax base per pupil.

26Coons, et ah, Private Wealth and Public Education, supra, p. 374.
-'‘ Griffin v. III., 351 U.S. 12 (1956 ); Douglas v. California, 372 U.S. 353 

(1 9 6 3 ); Harper v. State Bd. of Elections, 383 U.S. 663 (1966).

classification o f individuals by wealth, and (c ) this 
Court has recently held that .' -ate legislation allegedly 
establishing a classification based upon wealth is not 
subject to close judicial scrutiny where the interest 
affected was housing or shelter.2"

(a ) The line o f U.S. Supreme Court “ de facto 
wealth classification”  cases relied upon by the Cali­
fornia Supreme Court in Serrano and the lower court 
in the instant case, all involved clear inlringements o f 
recognized fundamental individual interests. In IIto ­
per v. Va. State Bd. of Elections, 383 U.S. 663 (1966) 
'the payment o f a poll tax as a precondition to \oting, 
was invalidated because it conditioned an individual’s 
right to vote on the payment o f a fee. In Griffin r. 
Illinois, 351 U.S. 12 (1956) and Uoutjlas r. California, 
372 U.S. 353 (19(53) states were precluded from re­
quiring an indigent criminal delendant to pay for a 
transcript or an attorney lor appeal, requirements 
wh id i effectively barred such individuals from access 
to the full criminal judicial process.

That the Texas s, wool financing legislation doe 
not adversely affect an individual's interest m eclucaj 
tion, no matter how highly that interest is ranked, ha 

* previously been noted. 'Thus, it does not appear tha 
any fundamental individual inter is affected by an 
wealth classification that is arguably emlwdied in tl: 
school financing scheme.

(b) Additionally, these cases all involved classit

“ 1 TJames v. Valtierra, 402 U.S. 137, 28 L.Ed.2d 678, 91 S.Ct. 1331 (197



— 30—

cations which precluded individuals from exercising 
,their rights to vote or to invoke the criminal judicial 
processes. The lower court in the instant case, like Ser­
rano, essentially found that the financing system class­
ifies districts l>v wealth. Thus, the system, i f  it can be 
deemed to classify at all, classifies districts and not in­
dividuals in that manner.

Thus, the rich person living in a poor school dis­
trict is disadvantaged at least as much as a poor per­
son in the same district, with respect to the local taxes 
imposed upon his property to 'finance his children’s 
education. Similarly, the poor person living in a rich 
school district is advantaged at least as much as a ricn 
person in the same district with respect to the school 
district tax rate. Therefore, what the court below and 
the California Supreme Court focused upon is not a 
classification o f individuals by wealth, but the lack o f 
uniform ity in the burdens on taxpayers in the various 
school districts, regardless o f differences in their in­
dividual wc.bth. That the financing system does not 
classify individuals by wealth and does not condition 
the ability to provide educational dollars on individual 
wealth is apparent.

In tins connection, it is pertinent that intrastate or 
interdistrict territorial uniform ity has not been held 
to be required under the Equal Protection Clause 
(Salsbury v. Mar aland, 346 IT.S. 545, 551-52, 9S L.Ed. 
2S1, 74 S.Ct. 280 [1953]), except in cases involving 
racial discrimination, (see, e'.g., Griffin v. County 
School Board, 377 U .S. 218, 84 S.Ct. 1226, 12 L.Ed.

31 —

2d 256 [1964]), or effective impairment o f the right to 
vote (e.g., Iicynolds v. Suns,‘.Ml U.S. odd, 84 S.Ct. 1362, 
12 L.Ed.2d 506 [1964]). It is apparent that if equality 
in school district tax bases is constitutionally required, 
then tax base equality would also be required tor all 
taxes imnosed bv local entities which provide such ser­
vices as public welfare, health services, police and fire 
protection, sewers, streets, drains, lighting, libraries, 
hospitals, parks and playgrounds. Obviously, such a
rule o f law would completely destroy the manifest 
benefits derived from  delegation o f taxing powers tc 
cities, counties, school districts and special districts 
and effectively destroy local government.

(c )  Also, even assuming, arguendo, that the schoo 
finance system does classify individuals or districts bj 
wealth, this C ourt’s decision in Janies v. Valtiern\ 
supra, 402 U.S. 137, 28 L.Ed.2d 678, 91 S.Ct. 1331, pro 
eludes application o f the close scrutiny test on tlia 
basis alone.20 It is more than apparent that the b ig  
premium placed upon community participation in d< 
visions which may lead to large expenditures o f loc; 
governmental funds is present in the area of educatic 
to at least the same extent it is present in low incon 
housing.80 Any disadvantage to a particular grov 
which may result from the operation o f the school t 
nancing system is certainly balanced by the values

7
:nThe presence of a wealth classification in Jamet is vigorously argued 

Justice Marshall in his dissent in that case. (23 L.Ed.2d at 68-4-635.) 1 
absence of wealth classification in the school finance system is discussed abc 

3<*Thc attempt of state legislatures and local school boards to tackle 
problems of education in an ad hoc manner arc discussed below, toget 
with the particular desirability of this approach in the field of education.



- 3 2 -

local autonomy and control o f local educational policies 
and decisions.31

3. Societal or governmental interests supporting 
or affected by the Texas school finance sys­
tem.

The policy reflected in the Texas school financing 
system, like California ’s, is to permit a high degree o f 
local control and responsibility over the administration 
o f the state’s public schools and over the amount o f 
money to he expended locally for'public school educa­
tion, while at the same time assuring essential o luca- 
tional financing for all who attend public schools. The 
dollar amount per pupil raised for educational pur­
poses within any school district, over and above the 
state contribution, rests within the sound discretion of 
the local school district governing board and the vot­
ers o f that district. (Texas Education Code §§20.01, et 
seq .; California Education Code §§20800, et seq.)

Thus, the aspect o f the financing system which is 
attacked by Appellees can he seen to embody a singular 
devotion to democratic values and precepts in the ad­
ministration and control o f education. The number and

*>As staled bv Mr. lustier Black in his majority opinion in James, 402 
U.S. 137, 142. 28 I,.Ed.2d 678, 683, 91 S.Ct. 1331: '

“ The people of California have also decided by their own vote to 
require referendum approval of low-rent public housing projects. This 
procedure en ures that all the people of a community will have a voire 
in a decision which may lead to large expenditures of local governmental 
funds for increased public services and to lower tax revenues. It gives 
them a voice in decisions that will affect the future development of their 
own community. This procedure for democratic decision making 
not violate the constitutional command that no State shall deny to .»ny 
person ‘ the equal protection of the laws.’ ”  [Footnotes omitted.]

—3 3 -

complexity o f the variables attendant to the administra­
tion and control o f a local school district, must of which 
involve financial considerations, render such local fis­
cal autonomy in education essential, i f  not compelling. 
The variables to he evaluated and accommodated hv lo­
cal boards and the state legislature include statewide 
variations in costs and salaries, the relative efficiency 
o f school districts, and the need for local innovation and 
experimentation to accommodate local needs or desires. 
The high, indeed fundamental, value placed upon dem­
ocratic processes which permit all o f the people o f the 
community to have a voice in public policy decisions 
which may lead to increased expenditures o f local gov­
ernmental funds is well settled, and has recently been 
reaffirm ed by this Court, (James r. Valticrra, 402 U.S. 
137, 28 L. Ed. 2 cl 678, 682-683, 91 S.Ct. 1331 (1971).) 
Adoption o f the equal protection standard and rule 
urged ay Appellees and adopted by the court below can 
only diminish the values of the democratic processes 
in educational matters by undercutting the responsi­
bility and concomitant local spirit and interest which 
flow  from local autonomy and control o f educational 
programs and the amount o f money to be expended on 
those programs.32

•t-It seems apparent that if the spirit of local responsibility is weakened 
or destroyed, it may be difficult to revive. In tracing the history of local con­
trol and responsibility for education. Gordon G. Lee. in An Introduction to 
Education in Modern America, Henry Holt & Co.. New York (1954 , “ Edu­
cation and ‘Grass Roots’ Democracy: The Administration of Education a: 
the Local Level,”  ch. 12, p. 207, has stated:

“ The trend today is decidedly in the direction of school district con­
solidation. Improved transportation has meant that schools c. :I<! scrv* 
larger areas; the resultant combination of erstwhile independent schoo 
districts has meant the availability of more adequate resources for schoo 
support. However, even this seemingly altogether desirable reform i



One o f the geniuses o f the public school systems in 
America has been the ability o f local school districts, 
whose residents desired and whose funds permitted, to 
experiment and innovate in finding solutions to edu­
cational problems, many o f which were o f purely local 
concern and others which were o f universal applica­
tion. The progress and achievements ol the public edu­
cation systems in this country since its founding speak 
for themselves. 1 he incentive and leadeisliip behind 
much o f this progress lias been the high motivation 
and performance o f individual school districts which 
have undertaken innovative practices and proven or ' 
disproven reasonable educational theoiies. Idle pci 
formance ;lnd motivation o f such school districts has 
been o f benefit to all school districts.33 A  constitutional 
nile which would result in a general leveling o f educa­
tional expenditures would effectively destroy the spirit 
and motivation o f such districts and would eliminate 
one element o f stimulating leadership in education 
which has existed since the inception o f our public ed­
ucation systems.

Another governmental or societal interest which is 
unquestionably affected bv the school finance legisla-

accompanied bv certain very real problems. The intimacy and warmth 
often characteristic of the smaller school arc all too frequently missing 
in the breer ools The rlose contact between school and community, 
and the resultant high degree of public interest, arc difficult to retain 
as the district is enlarged. All of which indicate, that the moyemen 
towards consolidation can he carried too far, to the point where the real 
and vital benefits of genuinely local responsibility are lost.

Diminution of the responsibility of local fiscal control would hayem uch 
the s unc effect on local spirit and interest in education as school distric t 
consolidation, because limitation of local fiscal options will inevitably reduce 
local responsibility to determine educational priorities and the distribution 
of educational dollars. . .  ,

S3Mort, P., et ah, Public School Finance (3rd ed., New York 1960).

lion in question is the interest oi the. state in treating 
individually the multitude o f problems in the area of 
education. This Court has held that, in the area of 
economics and social legislation, a state may addres> 
a problem ‘ one step at a time, or even select one phase 
o f one field and apply a remedy there, negleeting the 
others.’ Williamson v. Lee Optical Co., 348 U.S. 483, 
48S, 99 L.Ed. 583, 572, 75 S.Ct. 4(14.”  l)aud ridge v. W il­
liams, 397 U.S. 471, 484, 25 I5.Ed.2d 49.1, 501, 90 S.Ct.
1153. See also Jefferson r. Hackney, 405 E .S ........ , 32
L.E d.2d 285, 92 S.Ct. 1724.

The California Legislature, for  example, has de­
voted considerable attention in recent years to special 
educational problems in such areas as programs for 
the physically handicapped, the mentally retarded, the 
educationally handicapped and for children with work­
ing parents. These programs have all involved categori­
cal “ excess-cost”  state funding which the local districts 
may augment. Thus, it can be seen that the Legisla­
ture lias been tackling the myriad problems in educa­
tion on an individualized basis, problem by problem. 
The adoption o f the constitutional rule urged by A p ­
pellees and adopted by the court below i . this ease 
would seriously jeopardize the efforts o f state legisla­
tures and local boards to tackle these particularized 
educational problems in such a manner.3

A further interest o f society, and an indhidual in-

T T rh c intent of the California Legislature to provide f.orf^ aU on;tro1

Ed‘ Code §1730°-
pp. 44-47, infra.



terost o f parents, which would he affected hv aff’ir- 
niance o f the rule adopted by the court below has re­
cently been recognized and real tinned by this Court. 
This is the interest o f the parent in being able to con­
trol his ch ild ’s education and upbringing. The inter­
est o f the state in requiring universal compulsory pub­
lic education has twice been held to yield to the in­
terest o f the parent in determining where and by whom 
his child should i educated and attempting to achieve 
the best education he can for his child. ( Pierce v. So­
ciety of Sinters, 2(58 TJ.S. 510, 2(59 L.Ed. 1070, 45 S.Ct.
571 (1925) ; Wisconsin r. Yoder, 405 U .S ........, 32 L.Ed.
2d 15, 92 S.Ct. 1526 (1972).) The constitutional rule 
urged by plaintiffs and adopted by the lower court, 
would effectively limit the opportunities within the 
public school system o f a parent who desired to pay 
more for his child ’s education or to have an effective 
voice in the determination o f the amount o f funds to 
be expended on educational programs within his local 
school district.

4. Consequence cd 1 riistrating legislative and 
congressional attempts to promote education­
al opportunities.

In  addition to the foregoing factors to be considered 
in determining the standard of review to be applied, 
we submit that it is highly relevant to consider the 
consequences which would How Irom the standard of 
review adopted.

Thus, full eonsideraton should l>e given, in this 
case, to the impact upon the school financing system 
o f imposing a constitutional “ strait.jacket ”  o f close 
judicial scrutiny on legislative and congressional at­
tempts to promote educational opportunities. Our con- j 
cepts o f educational services to be provided are by no 
means static; they are in this modern area undergoing j 
revolutionary changes.®5

There is room here for only two o f numerous possi­
b le  examples. (F or  other examples o f innovation, see 
those programs described in F . >tnoto 40, in h a, and on 
page 60 of text.) The. State Superintendent of Public; 
Instruction o f the State oI California is presently urg­
ing that the California Legislature adopt Senate Bill) 
1302 (Appendix C , which would provide “ Early Child­
hood Education Program s,”  w h i c h  would launchi 
m any pupils on their educational voyages at the ago 
o f three years and nine months. In an interview re­
ported in a legal newspaper, The Los Angelos Daily
____  )

35$ee R. Butts & L. Cremin, A History of Education in American Culture 
( 1953) L. Cremin, The Transformation of the School (1961), both cited in 
Wisconsin v. Yoder, 405 U.S........., 32 L.Ed.2d 15, 26, 92 S.Ct. 1526.



— 3S—

Journal, July 4, 1972, Superintendent Files is quoted 
as follows:

“ Q. ilo w  are you planning to solve the prob­
lem o f C alifornia ’s falling test scoresi

“ A. One thing is our proposed early childhood 
program.

“ The essence o f the program is to find out 
how to change the elementary grades to make sure 
the children are excited.

“ AN e 11 try to individualize the programs. What 
you 're talking about here is children with prob­
lems with language, or low-income children— any 
number o f things, including the problems o f gifted 
children. W hen you individualize his work, vou 
give him the kind o f work that will challenge linn.

Another thing w e’re aiming at is to assure 
that every student will have one salable skill at 
the end o f high school. W e've had task forces on 
these things since early 1971.”

The other example o f striking educational inno- 
lation  in-process is that o f  “ career education.”  The 
o ffic ia l journal o f  the California School Boards A s­
sociation, after describing IT.S. Commissioner o f Edu­
cation, Sidney P . Marland, as “ an outspoken advocate 
o f  reform  in vocational education, states:'

“ * * * He has announced that such reform  will 
be one o f a very few m ajor priority areas for  the 
O il ice o f Education. Under his leadership, the 
federal government is financing research, leader­
ship training, and exemplary programs, m r>— f 
which, incidentally, are located in California.

‘ “ Career education’ is what Marland calls hi 
proposal. \\ hat is career education anywav { I.s i 
a fancier name for that rather shopworn com 
modify traditionally known as ‘ vocational train 
m g ’ > Emphatically not, according to Marland. win 
deplores the widespread tendency to divide cur 
riculum and students im o three traditional cate 
gories: college preparatory, vocational training 
ami general education. Career education would la 
a whole new scene; it would involve errr/j student 
regardless o f academic ambition, and it would ex 
tend throughout a student's entire schooling, iron 
kindergarten on. Instead o f limited specific skill; 
training, which has characterized so much o f  vo­
cational education, it would introduce students t< 
a more flexible and open-ended grouping skills'

lhese skills are the fifteen occupational clus­
ters illustrated in Figure 1 nd identified in F H  
ure 2 Each cluster has a whole range o f oeeupa 
tional options, each o f which offers a number o 
entry levels requiring varying degrees o f skills 
and /or training. F or example, in the health clustej 
there are such possibilities as accident prevention! 
pharmacology, medical and dental sciences tc 
name a few, and each o f these areas mav be’ en­
tered from different stag,-- . Mrmal preparatn I 
Open entry and exit from scm.nl to work and back 
again are important aspects o f M arland‘s concept; 
persons are to be encouraged to check in and out 
<d educational programs throughout their lives to 
upgrade their skills in a particular field or to re­
train themselves for an entirelv new career Such 
career flexibility is crucial in a society as complex 
and technological as ours, as we have been pain-



•IU—

fully learning in the past few years.”  ( “ California 
School B oards,”  -July/August 1972, pp. 7-8.)

rriius, not only the techniques but basic concepts of 
education are in the process o f rapid innovative 
changes. To subject to the “ necessary to a compelling 
state interest’ ’ test legislative efforts to inaugurate 
such innovative programs in selected or less-than-all 
school districts o f the state would, at best, stifle such 
efforts, and at worst, condemn them.

5. The ability of the courts to fashion and en­
force fair and appropriate remedies.

As previously noted, to apply the “ necessary to 
promote a compelling state interest”  test to legislation 
is virtually to condemn that legislation. I t  thus becomes 
important to consider, among all the relevant factors 
in determining the proper standard o f review, the 
ability o f the courts to fashion and enforce fa ir and ap­
propriate remedies with respect to the statutory pro­
visions which would probably he invalidated under that 
standard o f review.

Since amici are treating separately the question o f 
the ability o f the courts to fashion and enforce remedies 
with respect to the vastly complex and intricately inter­
woven legislation making up the Texas system o f f i­
nancing its public schools, we refer to Point I I I  for the 
substance o f these considerations which should be 
weighed by the courts as one of.the factors in determin­
ing the standard o f review to he applied here.

4 1.

The lack o f faith in the democratic electoral pro­
cess demonstrated by the plaintiffs who initiate attacks 
such as this upon comprehensive school financing pro­
grams should not he shared by the courts. Professor 
Coons and his associates, in their blueprint for litiga­
tion attacking school financing systems such as this, 
consider and give short shrift to the feasibility o f 
achieving their ends through established democratic 
processes.3" This high Court on the other hand has ex­
pressed its great faith in the democratic electoral pro­
cesses and has evidenced extreme solicitude for protec­
tion o f the rights o f people to vote, and for the riuht o f 
voters to see that their votes are not diluted by means 
o f any form  o f invidious discrimination, including dis-j 
crimination on the basis o f  the individual’s ability oij 
even willingness to pay.87

D. Conclusion.

For the foregoing reasons it is respectfully sub 
mitted that this Court should consider all relevant fac 
tors and reasons in determining the highly importan 
question o f the standard o f review to he applied to tin 
complex system o f laws whereby the State o f Texa 
finances its public schools. We si...,nit that a earefu 
analysis o f the alleged classification involved (wealth) 
the individual and societal or governmental interest in 
volved (public education), the interrelationxhiiJs be

auCoons, ct al.. Private Wealth and Public Education. Belknap Press i 
Harvard University Press (1970) pp. 287-289.

WJames v. Valtierra, 402 U.S. 137 (1971 ); Bullock v. Carter, ...... U.!
......, 31 L.Ed.2d 92 (1972).



tween each 1msis for determining Hint the legislative 
classification is “ suspect' and each basis for determ­
ining that the interests affected are “ fundamental,”  
the consequences for public education o f applying a 
strict standard o f judicial review, and the abilities o f 
the courts to fashion and enforce fair and appropriate 
remedies, must lead inexorably to the conclusion that 
something less than the onerous “ necessary to promote 
a compelling state interest”  test be applied.

TIIE TEXAS SCHOOL FINANCING SYSTEM IS VALID 
UNDER ANY FAIRLY APPLICABLE STANDARD 
OF REVIEW.

The provision, administration and control o f pub­
lic education is undoubtedly one o f ihe most complex, 
if not the most complex, set o f problems o f state and 
local governments, and increasingly, o f the Congress 
o f the United States.

In attempting to ascertain and accommodate the 
multitudinous and varying educational needs and de­
sires o f the people in the different regions and locali­
ties, the people o f Texas, like the people o f California, 
have devised a system o f school financing which is de­
signed to assure essential educational programs and 
opportunities to each child attending public schools 
within the state, while at the same time providing for 
and permitting a high degree o f local control and re­
sponsibility over the administration o f local schools

and over the amount o f money to be raised and ex­
pended locally for educational programs.38

The desires o f the people o f California to assure 
essential educational programs and opportunities uni­
form ly to all pupils and to assure local control o f pro­
grams and expenditures is clearly reflected in die fo l­
lowing legislative statement o f principles and pur­
poses o f the Foundation Program:

“ It is the intent o f the Legislature that the 
administration o f the laws governing the financial 
support o f the public school system in this State 
be conducted within the purview o f the following 
principles and policies:

“ The system o f public school support should 
be designed to strengthen and encourage local re­
sponsibility for  control o f public education. Local 
school districts should be so organized that they 
can facilitate the provision o f full educational op­
portunities for all who attend the public schools. 
Local control is best accomplished by the develop­
ment of strong, vigorous, a d properlv organized 
local school administrative' units. It is the State’s 
responsibility to create or facilitate the creation 
of local school districts of suflicient size to pro­
perly discharge local responsibilities and to spend 
the tax dollar effectively.

“ E ffective local control requires that all local 
administrative units contribute to the support o f 
school budgets in proportion to their respective 
abilities, and that all have such flexibility in their

28Texas Education Code §§16.01, el seq. and 20.01, ct seq., California 
Education Code §§17651, ct seq. and 20800, et seq.



m i u -  programs a* will readily Permit o f  progress 
In the ^ im p r o v e m e n t  of tire educational program- 
E ffective local control requires a local taMi\ 
power, and a local tax base which is not nndu .
restricted or overburdened.

-T h e  svstein o f public school support should 
assure that state, local, and other funds are ade- 
quale lor the support o f a realistic 
..■ram It is unrealistic and unfair to tin >LSS " c ' 
thy districts to provide for only a part ol t c - 
naneing necessary for an adequate educational
program. ' 1 , ,

-T h e  system of public school support should 
perm it and encourage local school districts to pro- 
'vide and support improved district organization 
m l educational programs. The system o f public 
school support should prohibit the introduction o f 
undesirable organization and educational piac 
L o s  • and should discourage any such practices now 
in effect Improvement o f programs in paiticula 

I L -L s  is in the interests o f the State as a whole 
as well as o f the people in individual dW tniC , 
since the excellence o f the. programs in some dis 
n fets will tend to bring about program im prove­
ment- in other districts. ,

-T h e  system o f public school support slioulu 
make provision fo r  t h e  apportionment of state 
funds to local school districts on a strictly objeo- 

v basis that can be computed as well by the oca 
districts as by the State. The principle ot loirU 
responsibility requires that the granting o i 
evctioliary powers to state offiem ls over the dis­
tribution o f state aid and the granting ... ■ 
officials o f the power to impose undue restnctioi

on the use o f funds and the conduct ol educational 
programs at tl.c local level be avoided.

-T h e  svstem of public school support si,mud
effect a partnership between the L T - u t h  "L -iim  
and the local district, with each paitn ■ ,
equitably ill accordance with its rclatne abi 
>1-1,0 respective abilities should lie combined to p io - 
■ e a financial plan between the State and the 

cV a gcn cies  known as the foundation program 
L i  p,.Idle school support. Toward this foundation 
pro-ram , each county and district, through a uni­
form  method should contribute in accordance 
its true financial ability.

“ Tile svstem ol' public school support should 
provide, through the foundation prognm i tor es­
sential educational opportunities lor all "lu> at 
tend the public schools, r e v is io n  should he made 
m the foundation program for adcpuite lm ancuis 
o f all educational services.

“ The broader based taxing power o f the State 
should be utilized to raise the level oM .uancM l 
support in the properly organized lint Inumeiall.. 
weak districts o f the State, tints emimhuting 
greatly to the equalization ol educational ojip 
Umitv fo r  the students residing therein. It should 
also he used to provide a minimum amount^ o f .
guaranteed support to all ■- S triets a
assistance serves to develop among all dn-t « ‘ 
sense o f responsibility to tlie entire system o l pul 
lie education ill tile State. State as.-is ant e ■ 
districts also would create a tax leeway lm tin ex­
ercise o f local initiative.”  (C alifornia education
Code §17300.)



—46—

Thus, it can seen that the California Legislature 
has attempted to aeeonu -date, through the Founda­
tion Program , both the compelling interest o f children 
in receiving essential educational opportunities and 
the compelling interests o f parents in directing and 
controlling the education and upbringing o f their chil­

dren.
.Jus; as the problems o f the poor are complex, and 

states are given great leeway in discharging their “ d-f- 
ficult responsib i l i ty  of allocating limited public weh 
fare funds among the myriad o f potential recipi­
ents,’ '30 so the problems of all groups and individuals 
in education are even more comp.ex, and state legisla­
tures and local school hoards should be allowed to ad­
just and solve the variant problems and allocate the 
limited funds for public education in the most demo­
cratic manner possible in order to accommodate local 
needs and desires for education services.

The problems of the poor in education are only one 
o f the legion of educational problems faced by the 
legislature on a continuing basis. California, like 1 exas 
and other states, has specifically attacked the problems 
o f poor and disadvantaged by providing compensatory 
education programs, which include special state fund­
in g /0 Additionally, tl.. people o f California have as-

,  Hackney. 405 U.S................... . 32 L.Ed. 285, 299, 92 S .C ,

~t''Thcsc^programs fo f
California Education Code §§ - ’ i ore-school follow through"sjsstsss! rsaeautf eu*. <*.
et seq.

47—

sured essential levels o f education to all ehildien v.itli 
other or additional specific educational problems.'11 A  
constitutional rule which would require a general ku cl­
ing o f educational expenditures, such as the rule 
adopted by the court below and the California Supreme 
Court in Serrano v Prirsl, supra, would undoubtedly 
infringe upon the abilities o f the legislature and local 
school hoards to accommodate the varied interests and 
needs o f children and their parents in these special 
problem areas/2

Additionally, it should he pointed out that the Texas 
Legislature, in attempting to satisfy the compelling 
interest o f the state in assuring essential educational 
programs for all children on a uniform basis, has taken 
into account the disparities in tax b; ••<>* among the dis­
tricts and attempted to e q u a l i z e  any concomitant 
variances in local abilities to support the foundation 
pc. gram and other programs by use o f the “ ec.atomic

Programs for educationally handicapped tuinfuv Cai.i.-n.i.i 
tion Code §§6750-6753; mentally handicapped minors. 4 b OJ J.
mentally retarded minor,, §§69(M-b?20 ; neurolog.rally handu ,| p< d mm rs 
8^26401-26404: ortho|X*<hrally handicapped minors, >.yJ< • 1, ,. *:•>
handicapped minors, §§6801-6822: ami WM.iUonal training and rr n 
services. §§7001-7028. Ml these programs include spit al slat. ■. ■ •
allowing local I>arlicipalion in the discietion of local school hoards, ocpcnd.nl 
upon local needs and desires for such programs,

4-For example, it is doubtful whether under tl.- A>rr«in,.-«../l-i;.i<c: r.d. . 
a local district with special needs and oesnes foi deaf -‘ nil ■■ ■■■ ''
classes could iai.-e and expend, from local sources, v.nairscr ..m .- “
n. ■ cssary or desirable to supplement basic state aP|»>itmi >" "'*  » ™  
such classes. If such supplementation is not constitutional.) P ‘ p.V ; g 
compelling interests of some parents m directing and controlling then childrens 
education'*'w.■ ■ dd be thwarted. If it is permissible the . ule make, no scr.se 
i„  that the citizens of one locality, whether due to ddlcnny oe-ttes o. -m m ..., 
to „ay or both, would be allowed to provide lor biy.n r expenmlur. s i.n.d 
under the assumption of the rule, a higher quality of education) m a puiucu- 
lar educational area, to the disadvantage of the child witn the same needs m 
a district where the school board does not choose to provide or supplement 
such a program.



18—

inilcx”  (Texas Edueation Code §§1(>.74-1(>.78). Cali- 
inniia has similarly attempted to equalize any sueli 
disparities through equalization aid (California E d­
ucation Code §§17901, 17902) and supplementary aid 
(§§17920-17926) to districts with lower property val­

uations.
in view of the apparent absence of a correlation 

between educational expenditures and educational out­
puts or the quality o f education afforded,41 the inter­
ests o f the state in preserving its foundation program 
formulas and local district options would appear to 
be ah the more compelling. The absence o f evidence 
o f Such a correlation additionally increases the desir­
ability o f giving state legislatures and local school 
boards great lceyway in determining the formulas for 
allocation o f educational funds, since those bodies are 
uniquely equipped to respond to the varying educa­
tional needs and their concomitant financing require-, 
ments on a continuing basis.44

The compelling interest of parents in directing and 
controlling the education and upbringing o f their chil­
dren has been recognized and recently reaffirm ed by 
this Court (.Pierce v. Socteij of Sisters, supra (1 9 2 o );

yodev, supra(1972).) The reality that 
pupils and parents in varying localities" have d iffer­
ing educational needs and desires strongly militates 
toward preservation o f local control over local cduea-

-wSee notes 14 and 15 and accompanying text. •

^SAnVlahiirrlpraw ling urban-suburban area such as Los Angeles County.

—49 —

tional programs .mid their concomitant fiscal alloca­
tions. The purpose ret let ted in tlu* present linancing 
.system to permit the citizens oi local districts to raise 
additional tax funds and expend them within the dis­
trict for whatever government services they determine 
are needed has been wisely preserved and pioteeted. 
Allocation and expenditure of funds on educational 
programs, depending on the complex and varying needs 
and desires o f parents and their children, including 
their needs or preferences for other governmental ser­
vices, is largely a problem o f parental choice.4'

This interest o f parents was also recognized by Mr. 
Justice Stewart in his m ajority opinion in 1 V right r. 
Council of the Citji of Emporia, 40 Law W eek 4806, 
4812:

“ Direct control over decisions vitally affecting 
the education o f one’s children is a need that is 
strongly felt in our society, . . . ”

In  that ease, the City o f Kmporia’s attenq to form 
a new and separate school system was found to be un­
acceptable not because creation o f a separate sw-.cm 
would result in a disparity in a racial balance between 
the city and county schools, lmt because the tim;.. 
the attempt indicated a clearly racial motive to impede 
the dismantling o f a duel school system, pursuant to 
court order, under a plan which entities representing

Kigcc Central Am. Tank Car Corp. v. Day, 270 U.S. 367, 70 I.,Ed. 635, 
4G S.Ct. 234 (1926); lless v. Mul.nney (9th Cir. 1954), 213 F.2_d 635, cert, 
don sub nom. Hess v. Dewey (1954), 3411 U.S. 836, 99 L.Ed. 6i9. 75 S.Gt. 
50; Board of Ed. of Ind. Sen. Dist., 20, Muskogee v. State of Oklahoma, 409 
F.2d 665. 668 (10th Cir. 1969).

mirest, Book Review, 23 Stanford L.Rcv. 591, 596, 611-12 (1971).



—50—

two-thirds o f the students affected had apparently ac­
cepted.48 The Court recognized that absent such pro­
hibited racial intent, the attempt to create a new school 
system would be acceptable.

"O nce the unitary system has been established 
and accepted, it may be that Emporia, if  it still 
desires to do so, may establish an independent sys­
tem without such an adverse effect upon the stu­
dents remaining in the county, . . . ’ -±0 Law W eek 
at 4812.

In the instant case, the school finance system quite 
clearly does not reflect such an invidious motive, either 
on its face or as applied. Therefore, the values o f pa­
rental choice in allocation and expenditure o f educa­
tional funds would appear to be all the more compel­
ling, and the finance system, inasmuch as it piescives 
and promotes such parental choice, certainty with­
stands constitutional scrutiny.

In its statement o f principles and purposes o f the 
Foundation Program , the California Legislature ex­
pressly recognized one o f the paramount state interests 
reflected in the present financing systems, which was 
wholly ignored by the court below and the California. 
Supreme Court in Serrano v. Priest, supra :

"T h e  system of public school support should 
permit and encourage local school districts to pro­
vide and support improved district organization 
and educational programs . . . .  Improvement of 
programs in particular 'districts is in the im p ests

•*840 Law Week at 4811-4812.

— 5L

o f  the State as a whole as well as of the people 
in individual districts, since the excellence ot pro­
grams in some districts will tend to bring about 
program improvement in other districts.”  (C ali­
fornia Education Code §17200.)

It has long been recognized that much of the re­
markable progress and achievements of the American 
public school systems has resulted from the incentive 
and leadership o f individual school districts which have 
undertaken innovative educational programs and, in 
the course o f so doing, have proven or disproven rea­
sonable educational theories. The opportunities for  the 
people of a local school district to choose to establish 
and finance innovative programs are expressly pro- [ 
moled by tin* present financing systems.4"

More basic, however, is the interest of the state, 
through the financing system, to permit districts with 
peculiar educational problems to accommodate the 
needs and desires of their stum uts and parents in a 
democratic manner. School districts in urban areas 
m u s t  accommodate special educational needs which 
may not be a factor in suburban or rural districts. Some 
rural districts, likewise, must ae mmodate certain ed­
ucational needs not prevalent ... urban or suburban 
districts.

The State Legislatures o f Texas ..... .1 California
have wisely recognized, in establishing and maintaining 
the present financing systems, that the people within

«aMort, P., et al. Public School Finance, 3rd F.d. (New York 1960) pp. 
207, 213.



local sclio : districts are uniquely equipped to consider 
the various factors involved in determining what edu­
cational programs are necessary and desirable for their 
particular district and in determining the level o f ex­
penditures for such programs. rl hese various tactors 
include:

1. The costs o f continuing contractual commit­
ments for educational services, such as teach­
ers’ salaries, which may vary widely from dis­
trict to district.

2. The costs o f other necessary and desired gov­
ernmental services, such as police and fire pro­
tection, health and sanitation services, and 
other municipal services such as streets, drains 
and lighting.

3. The availability o f federal funds for education­
al programs, which may relieve the pressures 
to allocate local funds to certain desirable edu­
cational programs.00

4. The interests o f parents and students in con­
tinuity o f educational programs within the dis­
trict.

5. The shifting nature and composition of the dis­
trict population and any concomitant changes

M>The impact of federal funds on the abilities of local parents and tax­
payers to choose the levels of support for educational programs they desire to 
provide was totally ignored by the court below and by the California Supreme 
Court in Serrano v. Priest. Both courts focused heavily upon tax rates and 
district expenditures and assessed valuations per pupil, this data, to tie real­
istic should include all federal funds distributed to the school districts m any 
consideration of disparities in school financing and expenditures. 1 o do other­
wise would be to require the state legislatures and local school boards to 
ignore the various federally-funded educational programs in all decisions con- 
ci'Miing the level of funding for particular educational programs, a require­
ment which is obviously irrational. Additionally) large, tax-exempt property 
holdings within a particular district, such as church and government holdings, 
may significantly affect such data.

- 5 3 -

in their educational needs and desires. Large 
districts such as Los Angeles, for example, are 
experiencing significant changes due to rede­
velopment, resulting in increased assessed val­
uations, and a decline in pupil population.

6. The impact o f private s c h o o l  attendance within 
the district, which affects the amount o f state 
and local funds allocable per pupil arm uie in­
centive o f many district residents to supple­
ment the level o f funding o f public school edu­
cational programs.

These factors, in addition to innumerable others, 
must be considered and adjusted on a continuing basis 
by the state legislature and local school boards. The 
complex problems o f education, on both a statewide 
level and even within a particular school district, can 
find do change rapidly. Any combination o f factors, 
such as those noted above, may, in the best judgment 
o f the people o f a state or a local school district, cab 
for  the adoption o f programs or procedures which 
operate to the disadvantage o f some particular group 
or groups within the state or district. It will almost 
always be true that the state or the local school district 
could accomplish its particular goals and purposes by 
some other program or procedure which would be less 
onerous to the disadvantaged group. However, in the 
area o f education, the problems are numerous and com­
plex, and the populations o f many districts contain 
many diverse and shifting groups. Under such circum ­
stances, the Texas and California leg is la tu re ’s deci-



— 54—

sious to allow local choice in the adjustment and ac­
commodation 01 these problems and groups is m oie 
than merely reasonable, it is compelling.

To require state and local legislative bodies, in all 
decisions concerning the adjustment and accommoda­
tion o f educational problems, including funding, to de­
termine and choose the least onerous means as to the 
interest o f each group which may potentially be dis­
advantaged, is to require the unreasonable, if  not the 
impossible. As Mr. Justice Black noted in his m ajority 
opinion in James v. Valticrra/upholding local referen­
dum procedures for approval o f low-income housing.

“ Under any such holding [requiring the State 
to choose the least onerous method o f accomplish­
ing its purposes if a particular group is disad­
vantaged by a state legislative scheme], presum­
ably a State would not be able to require referen- 
duius on any subject unless referenduins were re­
quired on all, because they would always disad­
vantage some group. And this Court ..ould be in­
quired to analyze governmental structures to de­
termine whether a gubernatorial veto provision or 
a filibuster rule is likely o ‘ disadvantage any of 
the diverse and shifting groups that make up the 
A m e r i c a n  people.”  (James v. Vulticrm, *upra, 402 
U.S. 137, 142, 28 B.Ed.2d GTS, GS3, 91 S.Ct. 1331.)

It is obvious that such a holding applied to the 
school finance system in the instant case would requite 
the Court to analyze the governmental structures and 
procedures o f state and local school districts concern­

ing all aspects of educational decision-making, a task 
for which courts are clearly ill-suited.

The lower courts in Mr Inn is r. Shnjnru, 293 F. 
Supp. 327 (N .l >. 111. 19G8) a f f ’d sub nom, Melanin v. 
Oyilvk, 394 U.S. 322, 333 (19G9) and Burruss r. 1147- 
Ucrson, 310 F.Supp. 572, 574 (W '.D. \ a. 19G!)) a r i d  
397 U.tt. 44 (1970) both recognized the complexity ui 
legislative decision-making in the field ol education 
and educational finance. As the lower court in Melania 
stated, quoting from M <i ro i>ohs I untie C<>. r. Litjj of 
Chicat/o, 228 IAS. Gl, G9-70, 57 L.Fd. 730 ( 1913) :

‘•The problems of government are practical 
ones and may justify, if  they do not require rough 
accommodations— illogical, it may be, and unscien­
tific . . . .  Mere errors o f government are not sub­
ject to our judicial review.’ ”  (293 F.Supp. at 333.)

A careful analysis o f the complexities involved in 
legislative decision-making in the field o f education 
dearly indicates that the decisions o f Texas and Cal­
ifornia to permit local choice while assuring es-ential 
programs and levels o f support on a urn. cm basis is 
neither illogical nor unscientific. Bather, it represents 
a devotion to den; n-racy and a historical and common 
sense recognition that decisions concerning distribu­
tion o f governmental services in such a complex and 
changing area should be made a* the local level in the 
most democratic manner possible. To hold that the 
mere involvement o f the state in the provision o f such 
governmental services requires that all such services



— 5 6 -

must be distributed equally or iu a maimer de\oid oi 
aspects o f localized pricing mechanisms would inevit­
ably require wholesale restructuring o f all governmen­
tal institutions.31

Indeed, all of the arguments made by plaintiffs in 
the instant case, including those concerning the appli­
cable standard of equal protection review, the alleged 
availability o f less onerous alternatives, and the al­
leged availability o f judicially manageable standards 
were presented to this Court in thegurisdictional state­
ments and various amici briefs filed in the Mclnnis 
and Burniss cases. By its summary affirm ance in those 
cases, this Court rejected p la intiffs ’ contentions, wise­
ly recognizing the complexity o f educational finance 
legislation and the desirability of permitting lom l 
choice in such matters. This Court has consistently 
a fforded  state legislatures special freedom m  the area 
o f taxation classifications.

“ The broad discretion as to classification pos­
sessed by a legislature in the field o f taxation has 
lon°' been recognized. This Court lilty  years ago 
concluded that ‘ the Fourteenth Amendment was 
not intended to compel the State to adopt an iron 
rule o f equal taxation,’ and the passage o f time has 
only served to underscore the wisdom oi that lec- 
oo-nition o f the large area of discretion winch is 
needed by a legislature in formulating sound tax 
policies. Traditionally classification has been a de­
vice for fitting tax programs to local needs ; 
usages in order to achieve an equitable distribution

BiBrest, Book Review, 23 Stanford L.Rev. 591, 599-600 (1971).

■57—

o f the tax burden. It has, because <d this, been 
pointed out that in taxation, even more than in 
other fields, legislatures possess the greatest i ree- 
dom in classification. Since the members o f a legis­
lature necessarily enjoy a lamiliarity with local 
conditions which this Court cannot have, the pre­
sumption o f constitutionality can be overcome only 
bv the most explicit demonstration that a class!Li- 
cation is a hostile and oppressive discrimination 
against particular persons and classes. ’1 he burden 
is on the one attacking tin- legislative arrangement 
to negative every conceivable basis which might 
support it.’ ' [Footnotes omitted; Madden v. Ken-  
f ltd, ij, ;l<>9 F.S. 8:5, 87-88, 84 L.Fd. 590. 593 (1939).]

The constitutional rule urged by plaintiffs and ap­
pellees herein and adopted by the court below and by 
the California Supreme Court in Serrano r. I’ rie.st, 
can onlv result iu an irrational upward or downward 
leveling o f educational expenditures resulting in in­
creased tax burdens and artificial uniformity in educa­
tional programs. The compelling w isdom o f permitting 
local choice in the adjustment o f complex educational 
problems must necessarily he ignored if such a con­
stitutional rule is to become the law * .his land.



- O S -

Ill

T in ; MONUMENTAL TASK OF MOKE FAIRLY ALLO­
CATING FINANCIAL RESOURCES TO SCHOOL 
DISTKICTS IS PROPERLY A FUNCTION TO BE 
EXEKCISEI) BY THE STATE LEGISLATURE AND 
THE CONGRESS, AND NOT BY THE COURTS.

The exceedingly intricate and complex problems 
which won Id he faced by the courts were they to take 
unto themselves the Herculean task of more fan 1} 
allocating a state’s available financial resources among 
its school districts, requires the conclusion that the 
courts should leave these problems in the hands of those 
equipped to deal with them: the State Legislatures, 
Governors, school boards, the United States Congiess 
and the President.

A  brief summary o f  the difficulties involved should 
su ffice  to demonstrate that the courts are not equip­
ped to deal with these problems.

Differences in Status Quo

11 ow would the courts alleviate the consequences o f 
presently existing differences in situations among the 
various school districts of a single state t lake, lot ex­
ample, the consequences o f some districts having old 
buildings requiring repair or replacement, with inad­
equate plavgrounds, as compared with districts having 
new buildings with adequate playgrounds. W hat about 
the same differences within the same school district, 
such as the large Los Angeles U nified School District

5!) —

w ith old buildings in the central core and new buildings 
near its perimeter resulting from newcomers settling 
farther and farther from the central city ! A  hat about 
differences in the levels o f bonded indebtedness among 
the districts, the differences in existing contractual 
commitments, salary schedules, commitments made by 
school staff in reliance on such salary schedules, d iffe r­
ences among districts in average salari because o f 
differences o f positions on graduated salary schedules, 
and differences in programs among districts, such as 
adult education, vocal, nal education, lunch programs, 
and culturally disadvantaged programs ! Are the courts 
in fact equipped to equitably alleviate the consequences 
o f such differences in the present situations o f the 
numerous school districts o f a state t

Allowing for Differences in Educational Needs

Are the courts equipped to make equitable allow­
ances for the differences in educational needs (,f the 
pupils o f a state / Plaintiffs concede that such d i f f e r ­

ences exist, but contend that their simple formula per­
mits making appropriate allowances therefor. How­
ever. they fail to point out how the courts are equipped 
to equitably deal with them. Surely, the state legis­
latures and the Congress are far better equipped to deal 
with these problems than are the courts. W e note the 
following examples o f particular educational programs 
adopted in California which indicate legislative at­
tempts to deal with special problems o f pupils on an 
individual basis. F or culturally disadvantaged minors, 
the California Legislature lias adopted:



(1 ) Crash programs in reading and mathematics 
(California Education Code [hereinafter Ed. C.] §§ 
6490-6498).

(2 ) Special programs for mentally gifted minors 
from  disadvantaged areas (Ed.C. §§6421-6434).

(3 ) Pro-school follow-through programs (Ed.C. 
§§6499-6499.9).

Other special programs adopted by the California 
Legislature include:

(1 ) Educationally handicapped m i n o r s  (Ed.C. 
§§6750-6753).

(2) Mentally handicapped minors (Ed.C. §§6870- 
6S74.6, 6920).

(3 ) Mentally retarded minors (Ed.C. §§6901-6920).

(4 ) Neurologically handicapped m i n o r s  (Ed.C. 
§§26401-26404).

(5 ) Orthopedic-ally handicapped minors (Ed.C. §§ 
894-S94.4)

(6 ) Physically handicapped minors (Ed.C. §§6801-
6S22).

(7 ) Vocational training and rehabilitation services 
(Ed.C'. §§7001-7028).

Even i f  it is granted that the courts, like the Legis­
lature, may make appropriate allowances for  such 
programs, on what basis would the courts, from year to 
year, determine how much allowance should be made

for each such program, where such programs should 
be located and what differential should be allowed to 
account for differences in costs, etc. arising by reason 
o f their location in remote rural areas as compared 
with urban or suburban areas {

Allowing for Differences in Costs

Are the courts in fact equipped to allow for d iffer­
ences in prevailing salaries in the various geographical 
areas o f the state, for differences in costs o f land ac­
quisition and construction o f buildings, lor dilterences 
in the efficiencies among school districts, because o f 
differences in size or other factors, in such matters as 
administration, supervision, and purchasing.'

Allowing for Federal Grants and Private Gifts

Are the courts equipped to make appropriate al­
lowances for funds available to school districts through 
Federal grants and private g i f t s ' The court below 
noted “ a series o f decisions prohibiting deductions 
from state aid to districts receiving ‘ impacted area’ 
a id .’ ’ (337 F.Supp. 280, 285.) And, how would the 
courts allow for differences among school districts in 
amounts received by way o f private g ift.'

—61 —

?



Allotting for Differential Services Rendered by State
and Intermediate Educational Units

How would the courts make appropriate allow­
ances in allocatin'; funds among the districts for d if­
ferences from county to county and from district to 
district in the amount o f services rendered by such 
intermediate governmental units as the O ffice of. the 
County Superintendent o f Schools in California?

The California Legislature has provided that the 
Countv Superintendent o f Schools may, and in many 
instances must, provide various services implementing 
those provided by school districts. These include >pe- 
cial education program coordination, supervision of 
instruction, attendance and health services, provision 
o f  guidance, library, and audio-visual services, and pro­
vision o f programs for education o f the physically han­
dicapped and mentally retarded (Ed.C. §§885-896).

The State Department o f Education o f California 
is authorized to engage in various programs and pro­
jects, some of which arc to be on a pilot project basis, 
in order to carry out the declared legislative intent “ to 
foster innovation and creative change in education, 
based on research and proven need”  and to “ join  to­
gether the United States O ffice of Education, the State 
o f California, and local school system to bring pur­
poseful change and experimentation to schools through­
out the state, through the use of all available resources 
o f the state.”  (Ed.C. §575) The scope o f the activity au­
thorized by the Eogislaturc to be perform ed a- q

state level mav be indicated by the foliowiua a itides 
o f the California Education Code, contained in Chapter 
6 entitled:

“ E L E M E N T A R Y  AN D SE C O N D A R Y  
E D U C A TIO N  ACT OF 1965 AN D 

E D U C A T IO N A L  R U SE A R C H
Article Section

1. (ieneral Provisions ................................ -.......-...  575
2. Educational Innovation

Advisory Commission .....................................-...  576
3. Special Educational Projects .......................... 589
4. Supplementary Educational C enters......... ..... 590
5. Experimental, Demonstration, and

Operational P r o je c ts  _............................-.......  591
6. Evaluation o f P r o je c ts ..............................—   592
7. Incentive Grants ..................................................  593’

Allowing For Innovation on “ Pilot Project”  Basis

How are the courts to make appropriate provision 
for innovation o f new educational programs, where 
there is a need for testing the efficacy o f these pro­
grams before it is feasible to lam h them in all school 
districts o f the state ! Would tin * ; s he acting with­
in the proper sphere o f their functions were they to in­
stitute such innovative programs on pilot liases ! See 
Senate Rill 1302 attached hereto as Appendix C pro­
viding for the innovative “ Early Childhood Education­
al Program ”  to show the extreme complexities in which 
the Legislature must become involved in order to pro-



---G-i

vide fo r  an innovative program, and the requirement 
or ability to tap vast sums o f publie funds in order to 
fund such a program. I f  this is too much for the courts 
to accomplish, and if under the court’s order the Legis­
lature may not provide for innovative programs, does 
not the court order deprive the school districts o f the 
state, and by extension the nation, o f the benefits to be 
derived from  learning the results and operating tech­
nique o f such programs 'l

The plaintiffs have placed the courts in a dilemma. 
The more simple the rule which might be adopted by 
the court, the less it would provide for alleviation o f 
the consequences o f the wide variety of differences in 
flic educational needs and desires o f the millions of 
students to be affected, and o f the consequences o f d if­
ferences in local situations. To adopt, a simple rule 
•would be to cast the children o f a state from a single 
mold leading us to fulfillment o f the dire predictions 
in Orwell's “ lb S l.”

The more complex the rule, to make provision for 
alleviation o f the consequences o f such differences, is 
to place an impossible on-going task upon the courts— 
a task with which the state legislatures, the Congress, 
and the various exercutive and administrative agencies 
created by them, are continuing to grapple, using vast 
sums o f money in support o f those efforts.5* F or exam­
ple, are the courts prepared to fashion remedies which

•"•-Thr National Education Finance Project initiated by the United States 
Office of Education in 19611 resulting in the oft-quoted publications of. which 
‘ ‘Alternative Programs for Financing Education”  Vol. 5 is but one. was funded 
for approximately S2,000,000. Id. p. vii.

even remotely approach the complexities o f A.II. 1283 
(Appendix II) presently pending before the California 
Legislature in apparent response to the Serrano de­
cision !

The problems involved here arc* well illustrated by 
me order o f the District Court below, in which the 
Court simply restrains the defendants from giving any 
effect to the existing financing laws o f the State o f 
Texas “ insofar as they discriminate against plaintiffs 
and others on the basis o f wealth other than the wealth 
o f the state as a whole”  and orders them to “ realloc;, 
the funds available for financial support o f the school 
system * * * in such a manner as not to violate the 
equal protection provisions o f both the United States 
and Texas Constitutions.”  The Court stayed its order 
for a period o f two years “ in order to a fford  the de­
fendant and the Legislature an opportunity to take all 
steps reasonably feasible to make the school system 
comply with the applicable law.”  (32.7 F.Supp. 280. 
2(3G.)

If the Legislature should fail to comply within 
that period o f time, the question arises, how would the 
court itself fashion and enforce a remedy which would 
comply with the rule embodied in the order, while at 
the same time “ equalizing educational opportunities”  
by taking into account, not all o f the considerations 
noted above, but simply the most important o f those 
considerations ( How would the court sec m it that the 
funds required to implement its ultimate order are 
made available { How would the courts manage to ac-



— GG

complish this each fiscal year in an era of rapidly 
changing- educational concepts > The problems o f pro- 
viding educational funds are inextricably intertwined 
with the problems of raising the necessary funds 
through taxation."3

It must be recognized that the problems faced here 
are far more difficult that those involved in the re- 
apportionment and desegregation cases— those prob­
lems are mere “ child ’s p lay”  by comparison.

The courts are not the proper forums in which to 
hammer out solutions to these intricate promems. As 
p o in t 'd  out by Professor Kurland:

“ W hen Edward 11. Levi, in his talk at the 
dedication o f the new Earl W arren Legal Center 
at Berkeley, mentioned the problem with which we 
are concerned here, he said that the proper forum 
for  finding a solution was not a conference but 
a research center, lie  was, o f course, right, that 
conferences do not supply solutions for such basic 
problems. But the same reason that makes it un­
liked v that a conference will provide solutions 
makes it unlikely, even Mr. Levi to aie contrary 
notwithstanding, the judiciary is going to a fford  
an answer. And my t liii .. point o f d ifficulty with 
the suggested constitutional doctrine o f equality 
o f educational opportunity is that the Supreme 
Court is the wrong forum for providing a solution. 
But 1 must warn you against my personal bias. 
Mr. Levi finds the ‘ accomplishment [o f  the ttu-

MThe “ power equalizing”  concept offered |>y Coons by way of token con- 
ccssion to the concept of local decision-making demonstrates plamti Is ac­
knowledgment of the close relationship between allocating educational funds 
and problems of taxation. J. Coons, W. Clunc & Sugarman, Private Wealth 
and Public Education,”  pp. 14-15 (1970).

preme Court . . . awesome.’ 1 find it awful. But 
even he conceded ‘ that many ol the decisions point 
directions for work which cannot he accomplished 
by the Court itself.’ Let me suggest some reasons 
why I think this would be one o f the problems that 
the Court should leave to others—at least for some 
time longer—to bring to solution.

Professor Kurland goes on to point out that “ the 
ingredients for success o f any fundamental decision 
based on the equal protection clause are three, at least 
two o f which must he present each time for the C ourt’s 
will to prevail beyond its effect on the immediate part­
ies to the lawsuit. The first requirement is that the 
constitutional standard he a simple one. The second 
is that the .judiciary have adequate control over the 
means o f effectuating enforcement. The third is that 
the public acquiesce—there is no need for agreement, 
simply the absence o f opposition— in the principle and 
its application.” 56

Professor Kurland appears to concede that the rule 
urged by Professor Coons and adopted by Scrnmo and 
the Bistrict Court below, is a simple one. thus satisfy­
ing the first o f his three requirements. Although amici 
agree that in its formulation, the rule is simple enough, 
we submit that its apparent simplicity is highly mis­
leading. The first term in the formula, “ the quality 
o f  public education,”  is itself so complex as to have

:>,Kuil;\i)cl. "Equal Educational . , ;ortunity: The Limits of Constiututional 
Juriqn udent e Undefined,”  35 Univ. of Chicago L. Rev. 583, 592 (1958) 
(Footnotes omitted.)

r,r,Kur!and, supra, footnote 54, p. 592.



defied the best efforts o f professional educators to the 
present day and for the foreseeable future. P laintiffs 
persuaded the Serrano court and the District Court 
below that they had avoided the pit tall ot “ lack of ju ­
dicially manageable standards”  by transforming their 
original demand that the courts enforce “ equality of 
educational opportunities”  into the formula “ the qua­
lity o f public education shall not be a (unction o f 
wealth other than the wealth o f the State as a whole. 
Dut, it is patently evident that they have not avoided 
that, pitfall since they utilized in their new formula­
tion the initial nrm  “ quality o f public education’ ' ra­
ther than some term such as “ expenditures per pupil. 
P la in tiffs ’ formulation does not embody the simple 
rule “ one scholar, one dollar,”  inasmuch as they ac­
knowledge and allege that different students have d if­
ferent educational needs requiring differential expen­
ditures P laintiffs are still asking the courts to oversee 
“ the duality o f education,”  not merely to equalize ex- 
i U r  l-HPil, and in .loin* sc, they ask the 
courts to perform  the impossible, as ™  m

Mclnnis v. .Shapiro,293 F.Kupp. 32, 1JGS)
and miss v. 1H7hrrson, 310 F.Supp. 5*2 (AV .D. \ a.

1969).67
In  further response to Professor L evi’s statement 

that the proper forum  for finding a solution to these 
problems is not a conference but a research center, 
amiei suggest that indeed extensive on-going research

BBAffd, sub nous. Mclnnis v. Ogilvie, 394 U.S. 322 (1969). 
G 'Affd 397 U.S. 44 (1970).

69—

is required in the vital field o f providing quality edu­
cational opportunities to the children ol the state, and 
that such research should be conducted in an atmos­
phere involving well intentioned educational and (Leal 
experts working together toward common goals, rather 
than w in g  with each other in adversary court proceed­
ings.'"’

An adverse consequence ol the o r  rts themseiie> 
undertaking the resolution •»( these problem* ot stag­
gering magnitude would be the absolving ol the state 
legislatures and Congress <>i this responsibility W it h  

the further consequence that the vast resources a\a i l -  

a b l e  to those legislatives bodies would not be utilized.

.V further adverse consequence, should the C on- 
rrei'ss and the legislatures nevertheless continue to ex-r*
eivise responsibility, would be the extreme uncertainty 
o f the constitutional validity ol each oi their laws and 
regulations were the “ necessary to promote a com­
pelling state interest”  test be made applicable thereto 
by this high Court.

Although it may be imagined that a well-inten­
tioned mastermind with powerful computers at his 
disposal and the power o f the , ' ■ behind him could 
solve the problems of public education in a more equi-

nil-.illy ail other eovernmrnlal services. with perhaps the exception of 
, rrt.tin minor ones, would be subje, t to tire Sftht' .o rule. If the courts arc to 
iuvoNr tlu-iusrl-.. in all tliesr mull. . :dinous problems assume tti’-n.'i-Kc> that 
ill,, quality of jin h i|uirrnmcut.il services arc not to be a function of wealth 
otl.ei than I he wealth of tie  State as a whole, the om its would be undertaki 
to themselves the impossible butdens of running the State atul local gosenr-

is, and would thereby be failing to give appropriate deference to the 
lUinoiratir ideas upon which this nation is founded and to the social values 
involved in the striving of communities for excellence and individualism.



IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1972 

No. 71-1332

San Antonio Independent School District, et al.,
Appellants.

v s .
Demetrio P. Rodriguez, et al.,

Plaintiffs - Respondents.

On Appeal from the United States District Court 

For the Western District of Texas

BRIEF AMICUS CURIAE OF 
JOHN SERRANO, JR., JOHN ANTHONY SERRANO 

WILLIAM H. CLUNE III 
JOHN E. COONS 

AND
STEPHEN D. SUGARMAN 

IN SUPPORT OF RESPONDENTS

We present this brief in support of respondents with 

the consent of the parties pursuant to Supreme Court Rule 42.

The opinion below of the United States District Court 

for the Western District of Texas is reported a t ____  F. Supp.

( W.D. Texas 1971).