San Antonio Independent School District v Rodriguez Brief of Amicus Curiae

    Interest of Amici

John Serrano, Jr. and John Anthony Serrano

John Serrano, Jr. and John Anthony Serrano are father and

son respectively. The son, age ____ , is a student in the _______

grade in Whittier School District in Los Angeles County, California. 

For many years, the elder Serrano has striven to secure quality 

public education for the son despite the family's residence in 

relatively poor school districts. To this end in 1968 he and his 

son joined other parents and their children suffering similar 

deprivation as original plaintiffs in the class action known as 

Serrano v. Priest, 5 Cal.3d 584, 487 P.2d 1241 (1971). That 

action is still pending before the state courts of California 

and will be seriously affected by the resolution of the instant 

appeal. The Serranos and all families in similar circumstances 

look to this Court for final judgment upon the systems of school 

finance which have so long visited inferior education upon 

children despite the generous tax effort of their parents and

neighbors.



William II. Clune III, John E. Coons, Stephen D. Sugarman

William H. Clune III, John E. Coons, and Stephen D. Sugarman 

are private disinterested individuals who have been writing and 

publishing on the problems of discrimination in the distribution 

of educational resources for a number of years. Their interest 

is that of scholars concerned that the present issue be resolved 

in a manner that both befits our constitutional system and fulfills 

the educational aspirations of a free society.

Summary of Argument

Texas school districts vary widely in their taxable wealth 

per pupil. Texas districts also vary enormously in their level of 

spending per child. The holding below challenges the former and 

not the latter; only spending differences linked to district 

wealth are here at stake.

Texas has made spending for public education a function of 

district wealth. Classification of pupils by their district's
m

wealth is constitutionally suspect. The infirmity of such classi-

2



fixation is increased, because the interest affected (education)

is one that affects "freedoms guaranteed by the Bill of Rights", 

flgndridge v. Williams, 397 U.S. 471, 484 (1971). It is further 

enfeebled where the victims are children. Given these circum­

stances the defendants must demonstrate that the discrimination 

by wealth of the district is necessary to advance a compelling 

interest of the State. There is, however, no interest of the State 

served by the present use of district wealth as the criterion 

determining the dollars spent upon a child's education. Even if 

local control of school taxing and spending were an interest held 

by the State and were thought to be "compelling", that interest 

can be served —  and served better —  by permitting locally chosen 

tax effort, but not local wealth, to determine spending.

The constitutional standard recognized below would end 

discrimination by district wealth without limiting the legislature's 

discretion to employ a decentralized financing system. That 

standard is simply that the quality of public education may not be 

a function of wealth other than the wealth of the State as a whole.

- 3 -



As a constitutional rule it is clear, simple, and effective. It

forbids nothing which is educationally rational. It has been

*7ell received, but, in any event, would be easily enforced without 

en8aSinS the courts in educational policy .

Finally, judicial intervention is specially appropriate

because of the political impotency of the class represented by

plaintiffs.

- 4 -



ARGUMENT

I. Introduction: Seven Misconceptions Concerning Fiscal Neutrality.

The standard adopted below is this: "The quality of

education may not be a function of wealth other than the wealth

of the state as a whole." ____ F. Supp. at ____. This simple

rule of "fiscal neutrality" has been misconstrued both by those 

who defend the present system and those critics who would have 

Rodriguez support broad egalitarian objectives. A summary 

correction of the more prominent errors may help put the true issue 

in clearer perspective before we proceed:

1* The issue is local control over spending. This is 

plainly wrong. The legislature would remain free as before to 

let districts set their own spending levels, so long as district 

differences in taxable wealth did not affect the outcome. There 

are many feasible systems that would achieve both objectives.

(See in_fr£, pp. _______) Local control in fact seems likely to

increase.



2. Uniformity of spending among districts is required.

Not only is this incorrect but the opposite outcome is more likely. 

It would even be proper for Texas to increase the present range 

of district spending variations. For example, the State validly 

might decide as an experiment to spend $10,000 per pupil in twenty

randomly selected districts. See infra, p. _____. It might do

the same with gifted pupils or low achievers. It would merely 

be forbidden to do so on the basis of district or family wealth.

3. Any valid system will be more expensive. Since public 

education itself could be abolished, this is clearly wrong in 

theory. Even in practical terms, however, total cost could well 

be reduced. Under one valid feasible system the State would redraw 

district boundaries, thereby substantially equalizing district 

taxable wealth; the State could then terminate its own contribution, 

leaving each district to raise all school revenue locally. See

infra, p. _____. Overall spending would fall, unless voters

manifested unprecedented tolerance for high property taxes.

6



4. Compliance will destroy public education. If anything

can save public education, it will be a minimal respect for 

rationality and justice. In fact, the Rodriguez rule has been 

excoriated by one critic precisely because it will save public 

education. Spring, __________.

5. Rodriguez is part of an "egalitarian revolution". As 

now should be clear, the standard adopted is scarcely egalitarian.

It guarantees neither equal spending nor any spending. It merely 

rejects those spending differences now bÔ sed upon district wealth.

6. The local property tax is threatened. So far as amici 

can ascertain, no plaintiff in the school finance cases has even 

alleged the invalidity of the local property tax. Certainly 

nothing in the Rodriguez opinion would suggest it.

7. Rodriguez is a poor man's complaint. It is true and

relevant that the plaintiffs are poor and that pupils from poor

families living in poor districts suffer most from the present 
«■

system. However, the only evil here attacked is state-created 

district poverty —  a systematic governmental discrimination affecting 

children of all income classes.

7



II. Texas Law Makes Spending for Each Child's Public Education 

A Function of District Wealth.

The Texas school finance system favors wealthy districts. 

Above the dollar level of the state-assisted minimum plan Texas 

invites such districts to raise and spend money at levels closed 

to the poor. The consequent differences in district expenditure 

levels are enormous, and the children of the poorer districts are 

the victims. The statutory mechanism responsible for this outcome 

assigns uniform responsibility for education to districts which, 

however, are given widely varying tax ability; spending is tied 

to the accident of local prope.ty wealth per pupil.

Dependence upon local wealth insures that poorer districts 

spend less despite systematically higher tax efforts. For example 

in 19 — Alamo Heights, a rich suburban San Antonio school

district raised $333 per pupil at a tax rate of $0.68 per $100 of 

assessed valuation; nearby F.dgewood, the impoverished district 

where pla^itiffs reside, would produce $42 at the same tax rate.

To’match Alamo Heights' spending F.dgewood would be required to



tax at eight times its rate, since its property is worth $5,960 

per pupil compared to the richer districts $49,478.

The ranges of wealth and spending in Texas are gigantic. In 

1967-68^among districts with over 500 pupils^market value of taxable 

property ranged from an estimated $7000 to more than $500,000 per 

pupil. Spending (without federal funds) for current operations 

ranged from below $200 to over $900 per pupil. Of those 79 dis- 

tricts with over 5000 pupils the richest enjoyed twenty-three times 

the wealth of the poorest; the former spent $754, the latter $215.

State subventions are structurally inadequate to deal with 

this bizarre maldistribution of resources. The two principal sub­

vention programs in Texas are called the "Available School Fund" 

and the Minimum Foundation Program"; the interaction of these two 

programs can be described here rather simply.

These two subvention systems amount to this:

(1) Flat Grant— The State pays every district, however

e*

rich, an equal per pupil grant from the Available

* We present here a simplified analysis of the major Texas programs, 
omitting a vuiiety of minor refinements and minor subvention 
programs which have little effect and would serve only to obscure 
the financing picture.



School Fund. The amount of this grant Is calculated

by dividing the State revenues dedicated to the Fund 

among the number of scholastics (pupils) in the state.

In 1968 it paid each district $98.00 for each child

in average daily attendance.

(2) Foundation Program— The State pays each district

the difference between

(a) a minimum or "foundation" spending level

established for the district and

(b) the sum of the flat grant received from 

the available School Fund and the "local 

fund assignment" (a purely hypothetical

amount which represents the district's

share of the cost of the foundation program. )

** The revenue sources in order of yield, are: a portion of the Omnibus 
Tax Fund; one fourth of the Highway Motor Fuel Tax Fund; a small 
part of the State ad valorem property tax; earnings from the Perma­
nent School Fund; and a few other revenues, {cite]

^ The State compels the local districts to help in the finance of 
the Minimum Foundation Program by having them, collectively, pay 
approximately 20% of its total cost. Each districts share of 
the collective 20% is computed as follows:

(a) the total county assignment is first calculated based on 
what proportion the county economic index bears to the state 
total. The county economic index is given as;? 20 x (assessed
property valuation) + 8 x (scholastic population) + 72 x 
(value added by manufacture + value of minerals produced 
+ payrolls for retail, wholesale, and service establishments 
+ value of agricultural produce).

(b) within each county, the program costs assigned to that 
county are distributed to the school districts according 
to the percentage of county assessed valuation located in 
each district. This value is the Local Fund Assignment.

(c) Failure to collect the assignment does not make the district 
ineligible for state aid, and an assignment greater than 
the foundation cost does not mean money leaves the district.
It is really only a computational tool.



However— and most important— if the district wants 

- " ® better program, it must raise the rest locally.

The operation of programs (1) and (2) in combination is grotesque. 

The flat grant part serves only to reward the richest districts, 

hence is actually antiequalizing in its impact. This is because 

the flat grant is subtracted out from the amount to be granted under 

the Minimum Foundation Program. Thus, only those districts that 

are ineligible for Minimum Foundation Program aid are benefited 

by the flat grant. For other districts the grant is, in economic 

terms, ghost money; they would receive the same total subvention 

if the flat grant did not exist. Thus the flat grant is a bonus 

for being rich.

However the problems with the Texas system of State subventions 

by no means stop at this point. The Foundation Program, while 

theoretically an equalizer which allows each district to provide 

a minimum program, does not operate consistently to yield more 

revenue to poor districts. In fact it even operates in some cases



as an anti-equalizing grant giving more state aid to the rich 

districts than to the poor. This remarkable occurrence is the 

result of structural peculiarities in two major facets of the 

Foundation Program— teacher hiring incentives and the "Local Fund 

Assignment."

First, the Foundation Program, gives an incentive to local 

school systems to hire better personnel by giving additional flat 

grants to districts when they hire teachers of greater experience 

and education. These grants are merely a base, and districts are 

free to pay salaries above this State-assisted minimum. The richer 

districts which can offer higher total salaries can attract the 

higher quality teachers to their district and then, in turn, are 

benefited by the state incentive bonuses. Conversely, the poorer 

districts with fewer and less experienced personnel are allowed 

a smaller sum of State money. Since personnel costs account for 

almost 90% of all Foundation program costs, it is easy to see how 

this unfair race for better teachers can produce considerably more 

state aid for rich districts than for poor ones.*

* We note: l'dgewood had 47% of its teachers with emergency certificates
13% w. masters degrees. Alamo Heights had only 11% on emergency 
certificates and 37% w. masters degrees.



Second, the "Local Fund Assignment" was created to insure

that richer districts pay a larger share of the costs of the 

Foundation program. [cite] All this amounts to even in theory 

is that richer districts receive a smaller proportion of the 

foundation figure from the state than do poor districts. [cite]

In fact any equalizing effects are largely vitiated by the method 

used to develop the "Assignment." The Governor's Committee and 

others have so found. [cites]

It is unnecessary to develop here a complete analysis of the 

complexities of the Local Fund Assignment; it is sufficient for 

present purposes that it does not make the Foundation Program an 

equalizing program. To illustrate this we turn to Exhibit 1 which 

shows the 1968-1969 Revenues from State and local sources for School 

Districts in San Antonio. Edgewood, the poorest school district, 

received $222 in state aid, while Alamo Heights, with a tax base 

per pupil nearly eight times that of Edgewood, received $225 in 

state aid. 'The aid is largely unrelated to district wealth, function­

ing effectively as a flat grant with trivial variations. This is



not an isolated phenomenon, Large scale samples indicate that

districts with equalized market value below $10,000 per pupil 

actually receive on the average less state aid than do districts 

in the $50,000 - $100,000 bracket. [cite]

Exhibit I

School District Market Value 
per 

Pupil

State Aid 
per 

Pupil

Local Revenue 
per 

Pupil

Edgewood $ 5,960 $ 222 ' $ 26

Harlandale 11,345 250 73

North Side 20,794 ’ 248 114

San Antonio 21,944 219 134

North East 28,202 233 182

Alamo Heights 49,478 225 333



Even if the mechanical defects in the State system were to

be patched up, the central evil would remain. Above the limited 

level of state aid, districts raise their money locally. In the 

competition that follows, the rich far outstrip the poor.

This process may be seen graphically in the following chart 

which illustrates in a generalized fashion the components of school 

expenditures in Texas districts.

GENERALIZED PATTERN OF TEXAS SCHOOL FINANCE



It is sometimes suggested that the reason that some districts

spend more on their pupils than do others is that they "care" more 

and hence make more of a tax effort. It is true of course that 

different local tax efforts do have a bearing on district spending 

levels. However, measuring tax effort by the tax rate that the 

district is willing to impose, it is clear that, if anything, the 

poor "care" more in Texas because they tend to have higher tax 

rates than do the rich districts. In the following table the 

average Tax Efforts (equalized rates on $100 value) for large 

numbers of districts falling into major categories of equalized 

market value per pupil are shown, along with the revenue raised

by this taxation.

Equalized Market Value 
of Taxable Property 

per Pupil
Tax Effort 

(on $100 value)
Local Revenue 

per Pupil

Below $ 10,000 $ 0.70 $ 63

$10,000 - $ 30,000 .72 163

$30,000 - $ 50,000 .55 224

$50,000 - $100,000 .38 287

Above $100,000 .31 610



What is really happening, of course, is that the richest

districts are coasting, taxing their immense wealth at a low rate. 

The poorest districts, though they carry higher rates, cannot 

overcome the wealth advantages of the rich. The following table 

lists the 15 highest spending and the 15 lowest spending of Texas’ 

79 districts which in 1967-68 had more than 5000 pupils. The 

table lists 1967-68 per pupil expenditures for current opera­

tions (without federal funds) and estimated market value of 

taxable property per pupil. The wealth-spending relationship 

could not be much clearer; all 15 high spenders have substantially

more wealth than have all 15 low spenders.



T ex as  School D istric ts W ith  O ver 5 0 0 0  P up ils  in A verage  D aily
A tte n d an ce  in J967-C S: W ealth  an d  S pending C om parisons of

15 H ighest an d  

D is t r ic t

15 L ow est Spending  D istric ts .

15 H ig h e s t  S p en d in g  D is t r ic ts
E x p e n d i t u r e  P e r  P u p i l  E s t im a te d  M a r k e t  V a lu e  

( W i t h o u t  F e d e r a l  F u n d s )  P e r  P u p i l

D c c r P a rk $ 7 5 4 $ 1 4 4 ,6 8 5

H ig h lan d  P a rk 604 $102 ,401

B razo sp o rt 576 8 2 ,4 5 4

G o o se  C reek 5 7 2 7 4 ,4 5 3

C alh o u n 543 107 ,565

T ex a s  C ity 526 60 ,S 36

M id la n d 525 39 ,4 6 7

G a le n a  P a rk 5 2 2 4 2 ,7 9 8

E c to r 519 66 ,7 4 7

S o u th  P a rk 519 62 ,1 1 3

W est O ran g e 519 5 8 ,3 3 2

L a M a rq u e 517 5 7 ,5 6 8

P o r t  A r th u r 515 6 7 ,8 4 4

P o rt N eches 511 6 5 ,9 0 2

C le a r  C reek 502 9 7 ,9 7 8

D is t r i c t

15 L o w e s t  S p e n d in g  D is tr ic ts
E x p e n d i t u r e  P e r  P u p i l  E s t im a te d  M a r k e t  V a lu e  

( W i t h o u t  F e d e r a l  F u n d s )  P e r  P u p i l

L a re d o $ 2 1 0 $ 1 0 ,2 5 0

E d g ew o o d $215 6 ,2 3 9

So. S an  A n to n io $251 1 1 ,5 7 2

S an  B en ito $ 2 8 4 10 ,097

K illeen $293 13 ,474

Y sle ta $296 13 ,874

W eslaco $ 3 0 2 11,207

H a r la n d a le $304 11 ,706

B row nsv ille $307 12 ,098

N o rth s id e $325 2 2 ,7 2 7

P h arr-S an  J u a n $329 14 ,617

N o rth e a s t H o u sto n $341 14,213

M e sq u ite $ 3 4 2 16 ,928

T e x a rk a n a $348 2 7 ,9 1 0

S an  A n to n io $ 3 5 0 2 2 ,4 1 8

In Texas the connection between district wealth and district

spending is inescapable, and the magnitude of its effects upon

spending is significant.



Ill. The Quality of Education is Diminished by District Poverty.

The court below found that affluent districts can provide

a "higher quality education." _____ F. ______• Plaintiffs' own

evidence on this point was unchallenged at the trial, [cite 

record] and, in their Jurisdictional Statement, defendants con­

cede the relation between expenditure and educational quality. 

Indeed they emphasize it in their prediction of the reaction of

those presently favored to the adoption of a fair system:

"It is unlikely that those whose children

now enjoy high quality education would sit

happily by as the quality of their education

is reduced." Jur. St., p. 8.

There is, then, common ground for the parties concerning

the substantial injury to plaintiff-children from the current

system. Only non-parties —  notably affluent school districts

have introduced any question here regarding the extent of plaintiff's

injury Jurisdictional Brief of Liebnann, Montgomery County, Grosse

Point School District ct al., pp. 17-18. One is tempted to sarcasm

-19-



by an argument from rich districts that higher spending buys no

better education. Nonetheless the Court should be assured that

the view taken below is in fact responsible and correct, and amici

will treat the point seriously.

Amici's own view on the cost/quality question, like that

of defendants, is the common-sense lawyers' view that in a free

enterprise economy one gets largely what he pays for. This has

been the historic approach of the Supreme Court which faced this

question in a different form nearly a quarter of a century ago

in another case from Texas. In Sweatt v. Painter, 339 U.S. 629

(1950), the issue was the objective educational "equality" of

racially separate law schools. The Court specified the goods and

service that extra money can buy —  more facilities, distinguished

teachers, more teachers, variety of courses, specialization, a

larger library. Id_. at 623-34. It decided that the Negro school

was unequal, in part because it had less of these purchasable things. 

0

"It .is difficult to believe that one who had a free choice would
i

consider the question close." Id_. at 634. For the Supreme Court

-20-



equality in the racial cases has always been measured in terms 

of the opportunity to learn. The question has not been, for 

example, whether black children scored at a particular level in 

a specific skill, but rather whether the state had systematically 

provided Negroes with inferior opportunity. The test is one of 

inputs by the State, not of performance by pupils on a narrowly 

focussed battery of tests.

This common-sense view that input defines quality is imbedded 

in the legislated structure of Texas schools. The statutes of Texas 

empower Alamo Heights to spend at its present high level only 

because the district continues to buy education with every dollar.

The teachers and facilities procured by rich Alamo Heights, whatever 

their number or specialty, all represent part of that district's 

fulfillment of its one statutory responsibility —  to educate. Thus 

it does not lie in the mouth of the State to disavow the effects of 

these expenditures. As the district court noted in Van Dusartz v.

Hatfield, 334 F. Supp. 870, ____ (D. Minn. 1971), " . . .  the

Legislature would seem to have foreclosed this issue to the State

-21-



by establishing a system encouraging variation in spending." It 

is, of course, conceivable that certain teachers in Alamo Heights 

and similar districts are compensated for engaging in activities 

with no educational objective or effect; it is further possible 

that rich districts are systematically inefficient. There is,
V

however, no suggestion of either in the record.

The plaintiffs have made a prima facie showing of injury 

by proving disparities in spending. They have gone further and 

shown the effect of these disparities upon the character of 

education. [Cite record.] The State itself has defined the school 

districts' function.^ as education. In such circumstances, even if ' 

there were an issue, the defendants would necessarily carry the 

burden of demonstrating the absence of any beneficial effect upon 

education. Indeed, they are the only parties in a position to 

supply proof on such a question. Since none was offered, the 

issue is pretermitted. [Good USSC cite?]

Rich -district amici would alter this answer by changing 

the question. At this final stage of litigation they would sub­

-22-



stitute a narrow statistical inquiry concerning the effects of 

added spending upon pupil scores on particular tests, thrusting 

the burden upon the children to prove that more dollars will 

raise their scores. We do not wish to suggest that such a burden 

would be unbearable. The scholars and professionals who have 

produced the literature relied on by defendants' amici know as 

well as the lawyers that money counts. Indeed, Professor James 

Coleman is himself the author of the lengthy and favorable "Intro­

duction" to a work which argues for the constitutional test adopted 

below. J. Coons, W. Clune, and S. Sugarman, Private Wealth and 

Public Education (Cambridge, Harvard Univ. Press, 1970). His 

support is not surprising. The justly famous "Coleman" Report 

which accidently spawned the statistical debate over the educational 

efficiency of money was itself not designed to answer such a question. 

[Cite Kept] Coleman's purpose was to measure the consequences of 

being black in the public schools. His concern with spending was 

confined to avoiding statistical misadventures with his racial 

data. Hence, only the crudest information on spending was gathered;

-23-



for example, there is simply no fiscal data in the Coleman Report

which ties the child himself to the level of his dollar support 

as he moves through school (or from school to school). [cites]

It is precisely this absence of specific and "longitudinal" 

information which has invited the academic logomachy among 

statisticians. [Cites]

This debate is interesting and promises to be endless. It 

is not, however, an issue we commend to the Court which has had 

enough recent experience with standardized tests to be wary of

their limitations. Griggs v. Duke Power Co■, ____U.S. _____ (1971).

If tests are this fallible, it is small wonder that statisticians 

find it difficult to trace the connection between extra dollars 

and a ghetto pupil's performance. Indeed, it is by no means clear 

that, as applied to nonmajority pupils, such tests reveal anything 

worth measuring. [cites] [S.F. testing case].

There is little reason further to detail the statistical 

conflict except for one point. The recent studies do show a strong 

positive correlation between student achievement and teacher



qualification [cite]. Since good teachers in general can command 

higher salaries, the connection to money thus is made; since 

teachers salaries consume perhaps 75% of the current budget in 

schools, [cite Texas figs from Morgan article] the connection to 

Rodriguez is made. That is, it could be made if that were the 

issue.

However, again, it is not the issue. Even if the statistical 

evidence some day were made satisfying and complete -- even if the 

absence of a connection between money and achievement on such tests 

were "proved" —  the conclusion here would be unchanged. It is 

simply false to the nature of education to suppose that its sub­

stance is exhausted by a child's response to standardized tests. 

Whatever his test score, a child —  and society has much to gain 

or lose from the school experience, if it be only the opportunity 

to acquire "acceptable social values and behavior norms".

B. Weisbrod, External Benefits of Public Education, 28 (1964). A 

family which somehow is able to move from Edgewood to Alamo Heights 

may not add a point to its child's test score. Nevertheless, it

-25-



has added to his education some very specific skills and experiences

that Edgewood could never provide. His exposure to carefully 

selected teachers, adequate facilities, personal attention in 

uncrowded classes, and a choice of courses from a broader curriculum 

represent educational values of the highest order even if 

inexpressible in statistics. The chance to learn a foreign 

language, to paint, to play the cello, to construct a table, or 

merely to attend school in a decent physical environment may help 

to get the young person a decent job, ennoble his spirit, and make 

him a better citizen. Amici believe such aspects of education to 

be enormously important. And, as Professor karst observes.

"If a wealthy district can afford an 

astronomical observatory and a poor district 

cannot, the luxury item in the wealthy school 

may make little difference to achievement test 

scores. But it will stand as a continuing 

reminder to the students in the adjoining 

poor high school that society does not think

-26-



their aspirations should reach so high. In

the separate-but-equal era, after all, school 

boards sometimes argued that the schools set 

aside for blacks offered some courses that 

were not available at the white schools —  

such as bricklaying."

Finally, it would be strange to suppose that the forms 

taken by education today are beyond mutation in ways that might 

be assisted by money. With virtual revolutions under way in a 

half dozen scientific, technological, and sociological fields of 

inquiry, the conclusion that mankind has reached a dead end in 

education does not commend itself as a ground for constitutional 

decision. See Gilbert and Hosteller, "The Urgent Need for Experi­

mentation", in Hosteller and Moynihan, eds., On Equality of 

Educational Opportunity, 371 (1972).

-27-



IV. The First and Fourteenth Amendments Guarantee Fiscal

Neutrality in Public Education.

Amici's constitutional argument for fiscal neutrality is 

supported by seven distinct considerations. The first —  the 

nature and gravity of the injury —  has already been considered. 

The six additional factors vary in their significance but are 

mutually reinforcing. They are as follows:

1. Legislative Relief is Unavailable to the Class 

of Plaintiff Children.

2. Discrimination by School District Wealth Triggers 

Close Judicial Scrutiny.

3. Education is a First Amendment Value Entitled to 

"Fundamental" Status Under the Equal Protection 

Clause■

4. The Infancy of the Victims Supports the Applica­

tion of the Compelling Interest Test.

5. No Asserted Interest of the State —  Compelling or 

Otherwise —  Would be Threatened by Fiscal Neutrality.

-28-



6. Fiscal Neutrality Leaves Vast Discretion in the

Legislature; Illustrative Neutral Systems Abound.

These six points will be considered in order.

1. Legislative Relief is Unavailable to the Class of 

Plaintiff Children.

The relative quality of any child's public education is, 

and should be, a function of politics and the democratic process. 

By nature and positive law, however, the child is excluded from 

participation in that process. Being an "infant" he is perforce 

apolitical. Politics may or may not improve his educational lot, 

but it will be someone else's politics. He must trust the 

beneficence of others, because he bears the "unalterable trait" 

of childhood; his is the disenfranchised minority^ par excellence. 

Graham v. Richardson, 403 U.S. 365 (1971).

Nor can it be supposed that children are "represented" 

politically by their parents. The truth is that many children do 

not have voting parents, a neglect of their interest which these

-29-



children are helpless to alter. Further, the parent who does vote

must consider many needs and objectives of government that compete 

with those of the child. It would be unrealistic to assume that, 

on educational issues, parents vote as would their children if 

those children were, franchised and aware of their self interest. 

Any "proxy" suffrage, therefore, is seriously defective.

The opinion in Breen v. Kahl, 296 F. Supp. 702, 708 (W.D. 

Wis. 1969), well summarizes the political predicament of the 

student:

. . . students . . .  do not vote in school 

board elections; political redress of their 

grievances is not open to them; theirs is a 

situation in which judicial vindication of 

constitutional protections has been considered 

particularly appropriate. . . . Cautious 

counsel to avoid judicial involvement in 

serious constitutional issues merely because

-30=



they concern younger people . . .  is

neither prudent, expedient, or just.

There is another reason for the political impotency of 

the plaintiffs in addition to their age. It would exist even if 

all parents of school children not only voted but voted solely 

for the best interests of their children. The predicament of the 

children living in poor school districts of Texas resembles that 

of the voters in underrepresented electoral districts prior to 

reapportionment. Cf. Baker v. Carr, 369 U.S. 186 (1962). Not 

only are rich districts politically potent, but their power to 

resist change is augmented by the districts of middling wealth 

which —  having,little to gain —  have been indifferent to change. 

Only the poor districts have seen reform as an unalloyed blessing, 

but such districts are politically as puny as the under-iepresented 

cities of Georgia rescued by the Court in Gray v. Sanders, 372 U.S. 

368 (1963) . It is quite understandable that none of the forty-nine 

states which have adopted a system based in any degree upon local 

wealth has managed to eliminate wealth discrimination. Hawaii

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alone avoided this fate by inheriting a centralized system of 

educational finance from its territorial days. See generally,

Title 18, Hawaii Rev. Stats. (1968). By this accident the 

Hawaiian legislature is liberated from the self-perpetuating 

privilege of rich districts.

It has been the historic responsibility of the Court both 

to secure those rights unprotectable through the normal political 

process and to reestablish that process where it is stultified. 

Intervention here would be consistent with both these judicial 

roles. In fact, unless the Court acts there is no reason to suppose 

that the pattern of gross discrimination among the children of Texas 

will be altered tomorrow or ever.

2. Discrimination by School. District Wealth Triggers 

Close Judicial Scrutiny.

This Court has frequently and without deviation declared 

that classifications based upon wealth are suspect and require 

close judicial scrutiny. Dozens of cases since Griffin v. IIlinois,

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351 U.S. 12 (1956) have treated classification by wealth either as

a signal of irrationality (Lindsey v. Normet, _____ U.S. _____,

_____ (1972) or as an intolerable burden upon a "fundamental"

interest (Harper v. Virginia, 383 U.S. 663 (1966)). Wealth

appears to play both roles in the opinion below. ____ F. Supp.

at _____. Amici will not canvass the many relevant decisions. It

will be sufficient here to point out the special invidiousness of 

the present discrimination by wealth.

The point is put very directly by the opinion in Van Dusartz 

. . . [t]he objection to classification by 

wealth is in this case aggravated by the fact 

that the variations in wealth are State 

created. This is not the simple instance 

in which a poor man is injured by his lack 

of funds. Here the poverty is that of a 

governmental unit that the State itself has 

defined and commissioned. The heaviest 

burdens of this system surely fall de_ facto

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upon those poor families residing in poor

districts who cannot escape to private schools, 

but this effect only magnifies the odiousness 

of the explicit discrimination by the law 

itself against all children living in relatively 

poor districts. 334 F. Supp. at _____.

In Serrano the California court rejected the suggestion 

that such wealth discrimination was merely "de facto":

. . . [w]e find the case unusual in the extent 

to which governmental action is_ the cause of 

the wealth classifications. The school funding 

scheme is mandated in every detail by the 

California Constitution and statutes. Although 

private residential and commercial patterns may 

be partly responsible for the distribution of 

assessed valuation throughout the state, such 

patterns are shaped and hardened by zoning 

ordinances and other governmental land-use

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controls which promote economic exclusivity.

[citation] Governmental action drew the 

school district boundary lines, thus deter­

mining how much local wealth each district 

would contain. [citations] Compared with 

Griffin and Douglas, for example, official 

activity has played a significant role in 

establishing the economic classifications 

challenged in this action. 5 Cal.3d at 603

487 P .2d at 1254.

The school finance cases are not the first before this

Cour t in which the relevant poverty was that of a group rather than

an individual. In Bullock v. Carter, _____U.S. ------ (1972), the

impact of the discrimination fell upon the class of "voters

supporting a particular candidate". Id. at -----• It: 1S> however,

the first in which the poverty was created by the State itself.

It is difficult to imagine a more appropriate circumstance for

close judicial scrutiny.

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Ainici do not insis t that, by itself, discrimination by

wealth is decisive. No court has so held. However, when such

a classification affects the distribution of public education,

the constitutional significance is cumulative. Van Dusartz v.

Hatfield, 334 F. Supp. at This conjunction of the suspect

classification with the fundamentality of education (now to be

described) bespeaks the rule of elemental fairness that the quality 

of public education may not be a function of wealth.

3. Education is a First Amendment Value Entitled to_

''Fundamp.ntal" Status under the Equal Protection

Clause.

The conclusion below that education is "fundamental" serves

two functions in constitutional analysis. First, it triggers the

strict standard of equal protection review sought by plaintiffs.

Bullock v. Carter, U,S. at _____• Simultaneously it dis-

tinguishes education from nonfundamental interests, thereby

suggesting appropriate limits to future judicial action. Over

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r e c e n t  y e a r s  the b o u n d a r i e s  of f u n d a m e n t a l i t y  h a v e  b e c o m e  clearer.

On the one hand the Court has refused to abandon the traditional 

jt of rationality when it reviews purely "social and economictest

regulation; the opinions in Dandridge v. Williams, 397 U.S. 471

U.S. _____ (1972), seem to(1970), and Lindsey v. Normct, --

relegate welfare and housing respectively to such a category of 

commonplace interests. Meanwhile, however, the Court has repeatedly 

reaffirmed the fundamentality of voting and political association.

it c  ( ) :  Bullock v .  C a r t e r ,Dunn v. Blumstem, _____. u*b* ----- v -------

supra ; Williams v. Rhodes, 393 U.S. 23 (1968)

How isis the line to be drawn? Speakin-g for the majority im

Dandridge Mr. Justice

social and economic re

Stewart suggested a division between purely 

gulation on the one hand and, on the other,

" . . .  regulation affecting freedoms guaranteed by the Bill

lights . . . "  397 U.S. at 484. Where does education stand inof Rigl

this division?

is cruc

To speak generally lor a moment, it is obvious that edueation 

ial to both state and individual in a rich variety of ways —

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social, economic, intellectual, and political. It cannot be dis­

missed as merely social and economic or as "merely" anything. It 

is too rich in its implications to be captured in a formula. To 

appreciate fully the "fundamentality" of education it must be 

viewed in all its many aspects —  intellectual, political, social

and economic —  and it must be considered both from the viewpoint

CO/K f 1/ S/ 0  rt S

of society and of the individual pupil. These are these familiar 

and congenial to the Court from its long consideration of education 

in the racial context. In fact they represent perhaps the most 

common motif in our vast social literature. If there is any 

activity commonly accepted as "fundamental" in our society, surely 

it is education. As Justice Blackmun observed in Palmer v. Thompson,

______} _____  U.S. _____, _____  (197 ), education is not merely one

of the "nice to have" public services. For a general discussion of 

the question see Serrano v. Priest, 5 Cal.3a 584 at 604-610, 487 

P.2d 1241 at 1255-1259; Coons, Clune, and Sugarman, Private Wealth 

and Public Education, (Cambridge, Harvard University Press, 1970) at 

364-366, 370-373, 387-393, 397-419.

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Yet the question posed by Justice Stewart in Dandridge is

somewhat narrower. Prescinding from education's many roles in 

preparing children to compete in the marketplace, it would pose 

this issue: Does education "affect" speech, voting, political

association or other freedoms guaranteed by the Bill of Rights? 

Accepting this as the focus of inquiry, amici here will emphasize 

but one aspect of this many sided activity —  education's genetic 

bond to recognized First Amendment rights. Amici will insist that 

" . . . education is not merely economics; it is a member of the 

first amendment family of values." Goodman, "De Facto School 

Segregation: A Constitutional and Empirical Analysis", 60 U. Cal.

L. R. 275, 350 (1972).

That family of intellectual and political rights has been 

given center-stage in our constitutional life because they are 

" . . . vital to the maintenance of democratic institutions". 

Schneider v. State, 308 U.S. 147, 161 (1939). Other values —  the 

purely social and economic —  may sometimes be sacrificed to 

evanescent legislative choice, so long as the Court maintains a

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societal order which is politically and intellectually open. But 

a broad indulgence for legislative experimentation is justified 

only by a jealous concern to preserve full opportunity for ideo- 

logies and for ideas. Hence, while sometimes tolerating the most 

poignant of merely personal economic deprivations, as in Dandridge, 

the Court has held the state to the highest standard of fairness 

in matters affecting politics and speech. In these areas the justices 

have been virtually unanimous. Thus in Williams v. Rhodes, supra,

Mr. Justice Black himself emphasized for the majority that the 

intertwining speech and political rights there asserted " . . .  rank 

among our most precious freedoms . . . " , and for this reason

trigger a special burden of justification by the state. _____U.S.

at _____. And where the First Amendment was implicated in Cox v.

Louisiana, 379 U.S. 536 (1965), again it was Justice Black insisting 

upon the state's duty of neutrality in the provision of opportunities 

to hear and be heard. "To limit access . . .  to some views but not 

others . . . " is forbidden as an "invidious discrimination". 379 

U.S. at 579-580.

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Amici will now argue that education stands squarely planted

on the constitutional feet of politics and speech. It is at once 

a political activity of the first order and the primary influence 

of the state upon the intellectual life of its citizens. The dis­

cussion will be divided between education as an intellectual and 

as a political right. This division is concededly rather arbitrary 

and is for convenience only.

(1). Education as an Intellectual Right.

This Court has already described education specifically 

as a right encompassed by the First Amendment's guarantee of freedom 

of speech, tracing the relevant judicial history to the 1920's.

Thus in Griswold v. Connecticut. 381 U.S. 479 (1965), the Court 

states that " . . .  By Pierce v. Society of Sisters, supra, the 

right to educate one's children as one chooses is made applicable 

to the states by the force of the First and Fourteenth Amendments". 

381 U.S. at 482. In Tinker v. Des Moines School District. 393 U.S. 

503 (1969), the Court again interpreted Pierce v. Society of Sisters. 

268 U.S. 510 (1925) and Meyer v. Nebraska. 265 U.S. 390 (1923) as

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based upon the First Amendment and spoke of the rights of students,

as students, arising thereunder. 393 U.S. at 506-07. See also 

Epperson v. Arkansas, 393 U.S. 97 (1968).

Technically, it may have been stretching a point for the 

Court to cite either Pierce or Meyer as First Amendment cases.

Each is, formally speaking, an example of substantive due process, 

and neither specifically mentions the First Amendment. Neverthe­

less, the Court is clearly correct in its modern interpretation of 

these cases, for their very core is the recognition that education's 

impact upon the personality, intelligence, and loyalties of children 

raise fundamental issues of freedom of the mind. It is not sur­

prising that Pierce and Meyer show a current vitality uncharacteristic 

of substantive due process decisions generally.

The ways in which education is implicated in First Amendment 

freedoms of speech and intellect are diverse, and not all of them 

are involved here. For example, there is no active frustration by 

Texas of any specific attempt to communicate such as that in 

Tinker v. Dos Moines School District, 393 U.S. 503 (1969). The

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