San Antonio Independent School District v Rodriguez Brief of Amicus Curiae

    dimrt nf Uni&fr i&ai?0
O ctober T eem , 1971 

No. 71-1332

In t h e

S an  A ntonio  I ndependent  S chool D istrict , et al.,

■—vs —
Appellants,

D emetrio  P. R odriguez, et al.,

Appellees.

ON A P PE A L  PR O M  T H E  U N IT E D  STATES D ISTRICT COURT 

EOR T H E  W E ST E R N  D ISTR IC T OE TEXAS

MOTION FOR LEAVE
TO FILE BRIEF AMICUS CURIAE AND BRIEF 

FOR THE N.A.A.C.P. LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

J ack  Greenberg 
J ames M. N abrit, III 
N orman  J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for Proposed 
Amicus Curiae

A braham  S oeaer 
School of Law 
Columbia University 
New York, New York 10027

Of Counsel



TABLE OF CONTENTS

PAGE

Motion of N.A.A.C.P. Legal Defense and Educational 
Fund, Inc., for Leave to File Brief Amicus Curiae
in Support of Affirmance ............................................  1

Brief for the N.A.A.C.P. Legal Defense and Educa­
tional Fund, Inc. as Amicus Curiae ...........................  1

A rgum ent

I. The Judgment Below Can and Should Be Af­
firmed Upon the “More Narrow” Ground of De­
cision by the District Court: That Texas’ School 
Financing Scheme Worked a Substantial Dis­
crimination Upon Predominantly Minority School 
Districts Without Any Compelling Or Even Ra­
tional Justification Therefor ................................. 5

II. The Judgment Below Also Can and Should Be 
Affirmed On Its Holding That, Based Upon the 
Evidence Presented to the District Court, the 
Texas School Financing System Impermissibly 
Links Wealth and Educational Opportunity....... 8

III. Many Issues Discussed by Appellants Need Not 
Be Resolved by This Court In Determining This 
Appeal, and They Are Problematical On This 
Record In Light of Appellants’ Failure To De­
velop Them Below  ...............................................  13

Conclusion  ......................................................................  18



11

T able of  A uthorities

Cases: page

Alvarado v. El Paso Independent School Dist., 445 F.2d
1011 (5th Cir. 1971) ....................................................  5

Baker v. Carr, 369 U.S. 186 (1962) ......... ....................... 16
Blackshear Residents Org. v. Housing Authority, Civ.

No. A-70-CA-51 (W.D. Tex., Dec. 3, 1971) ___ _____ 7
Brown v. Board of Education, 347 U.S. 483 (1954)__  2

Cisneros v. Corpus Christi Independent School Dist.,
324 F. Supp. 599 (S.D. Tex. 1970) ..................... ...... . 5, 7

Edgar v. United States, 404 U.S. 1206 (1971) ............... 3

Graves v. Barnes, Civ. No. A-71-CA-142 (W.D. Tex.,
Jan. 28, 1972) ................................. ............. ....... ........  7

Griffin v. County School lid., 377 U.S. 218 (1964) ....... 3

Hernandez v. Texas, 347 U.S. 475 (1954) .......... ............ 5

James v. Valtierra, 402 U.S. 137 (1971) ............ ............. 7

Keyes v. School Dist. No. One, Denver, No. 71-515 (U.S. 
filed 1971) ......................................................................  2

McLaurin v. Oklahoma State Bd. of Regents, 339 U.S.
637 (1950) ..................................................................... 6

Serrano v. Priest, 5 Cal. 3d 584, 487 P.2d 1241 (1971).... 7
Sweatt v. Painter, 339 U.S. 639 (1950) .........................  6

United States v. Texas, 321 F. Supp. 1043 (E.D. Tex. 
1970), 330 F. Supp. 235 (E.D. Tex. 1971), aff’d 447 
F.2d 441 (5th Cir.), stay denied sub nom. Edgar v. 
United States, 404 U.S. 1206 (1971) ........................  3



I l l

PAGE

United States v. Texas Educ. Agency, No. 71-2508 (5th 
Cir., August 2, 1962) .......................................... ........2, 5, 7

Wright v. Council of the City of Emporia, 40 U.S.L.W.
4806 (U.S., June 22, 1972) ........... ..............................  2

Other Authorities:

Coleman, J., et al., Equality of Educational Oppor­
tunity (1966) ............... .................. .......  ...............  g

Coons, Clune & Sugarman, Private Wealth and Public
Education, 25 (1970) ................ ............................. 1 4

Guthrie, J., Schools and Equality (1971) ............ .........6,14

Interdistrict Inequalities in School Financing: A Crit­
ical Analysis of Serrano v. Priest and its Progeny, 
120 U. Pa. L. Rev. 504 (1972) ....................................



I n  th e

Srnytmm Ohwrt rtf %  Unite Ji States
O ctober T erm , 1971 

No. 71-1332

S an  A ntonio  I ndependent S chool D istrict , et al.,

Appellants,
—vs.—•

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

ON A P PE A L  EROM  T H E  U N IT E D  STATES D ISTRICT COURT 

FOR T H E  W E ST E R N  DISTRICT OE TEXAS

MOTION OF N.A.A.C.P. LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., FOR LEAVE 

TO FILE BRIEF AMICUS CURIAE IN 
SUPPORT OF AFFIRMANCE

The N.A.A.C.P. Legal Defense and Educational Fund, 
Inc., a charitable, non-profit corporation, by its undersigned 
attorneys, respectfully prays that this Court grant leave 
pursuant to Rule 42 of the Supreme Court Rules, permitting 
it to file the appended Brief Amicus Curiae in support of 
affirmance in this cause. The interest of proposed amicus 
in this litigation is fully described infra at pp. 1-4 of the 
Brief; this cause involves matters of exceptional public im­
portance of the sort which have traditionally marked those 
cases in which this Court has permitted the filing of briefs 
amicus curiae.



2

Consent to the filing of this Brief has been withheld by ap­
pellant State of Texas and thus this motion is submitted.

W herefore, proposed amicus respectfully prays that this 
Court grant leave to file and accept the appended Brief 
Amicus Curiae in support of affirmance of the judgment 
below.

Respectfully submitted,

N.A.A.C.P. L egal D efense and 
E ducational  F u n d , I n c .

By:

J ack  G reenberg 
J am es M. N abrit , I I I  
N orman  J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for proposed Amicus Curiae

A braham  S ofaer,
School of Law
Columbia University
New York, New York 10027

Of Counsel



Isr t h e

(tart ni %  Imtrin t̂atra
O ctober T erm , 1971 

No. 71-1332

S an  A ntonio  I ndependent S chool D istrict , et al.,

—vs.—
Appellants,

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

ON A P PE A L  FROM  T H E  U N IT E D  STATES D ISTRICT COURT 

FO R  T H E  W E ST E R N  DISTRICT OF TEXAS

BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE

The N.A.A.C.P. Legal Defense and Educational Fund, 
Inc., is a non-profit membership corporation, incorporated 
under the laws of the State of New York in 1939. It was 
formed to assist Negroes to secure their constitutional 
rights by the prosecution of lawsuits. Its charter declares 
that its purposes include rendering legal aid gratuitously 
to Negroes suffering injustice by reason of race or color 
who are unable, on account of poverty, to employ and en­
gage legal aid on their own behalf. The charter was ap­
proved by a New York court, authorizing the organization 
to serve as a legal aid society, and that approval has been 
renewed. The N.A.A.C.P. Legal Defense and Educational 
Fund, Inc., is independent of other organizations and sup­
ported by contributions of funds from the public.



2

A central purpose of the Fund is the legal eradication 
of policies and practices in our society that bear with 
discriminatory harshness upon Negroes and other minority 
group citizens, and upon the poor or deprived, who all too 
often are minority group citizens. Throughout its ex­
istence, the Fund has been particularly sensitive to the need 
to eliminate such discriminations in the educational field. 
Not only does the failure to provide adequately for the 
preparation of minority group children condemn them as 
adults to continue the cycle of poverty and discrimination, 
but the contrast between the programs made available to 
them and those afforded children of the dominant racial 
and ethnic groups affects young minds in a particularly 
stinging way to produce bitterness and strife.

In part for these reasons, the Fund has pioneered in 
the legal struggle to eliminate racial and ethnic segrega­
tion in the public schools. Its attorneys have been asso­
ciated with virtually every major school desegregation case 
decided by this Court between Brown v. Board of Educa­
tion, 347 U.S. 483 (1954) to Wright v. Council of the City 
of Emporia, 40 U.S.L.W. 4806 (U.S. June 22, 1972), 
and have likewise participated, with local counsel, in liter­
ally hundreds of such actions in federal courts. Typically, 
these suits involved the segregation of black and white 
pupils within a school district. Fund attorneys have also 
worked to eliminate segregation of Mexican-American or 
Hispanic children, however. In Keyes v. School Dist. No. 
One, Denver, No. 71-515, presently before this Court, suit 
was brought to reverse Denver school policies which sepa­
rated black, Hispano and white pupils. In United States 
v. Texas Educ. Agency, No. 71-2508 (5th Cir., August 2, 
1962), attorneys from the N.A.A.C.P. Legal Defense Fund 
and the Mexican-American Legal Defense Fund (some of 
whom were associated with the plaintiffs herein at an



3

earlier stage of the litigation) intervened in a case before 
the Fifth Circuit in order to fully protect the rights of 
black and Mexiean-American students to a desegregated 
education in Austin, Texas. And, there are other examples, 
for we recognize that Negroes are served by the elimination 
of all racial and ethnic discrimination.

While many of these suits involved intra-district dis­
crimination, we are also sensitive to the ways in which the 
State may structure its educational process with the result 
of disadvantaging blacks or other minority group children. 
Griffin v. County School Bd., 377 U.S. 218 (1964) dealt 
with the State’s obligation to furnish equal educational 
opportunities to all schoolchildren; we are presently en­
gaged in litigation in the lower federal courts which seeks 
to further define the State’s obligation in the context of 
metropolitan areas. The instant case deals with inter­
district discrimination resulting from the State’s structur­
ing of its educational financing system. The disparities flow­
ing from the existing system make it virtually impossible 
for Texas school districts of predominantly Mexican-Amer­
ican population to raise sufficient revenues to even begin 
to meet the educational needs of its children.* The opinion 
and judgment below properly recognized and dealt with 
that discrimination and it should be affirmed. Amicus sup­
ports the result reached below because this is a case in 
which discrimination against Mexican-Americans and 
against poor people was proved, and the State told to 
eliminate it.

* Many small predominantly black districts which formerly ex­
isted in Texas and which were similarly affected by the Texas 
school funding system, were eliminated as the result of the decision 
in United States v. Texas, 321 F. Supp. 1043 (E.D. Tex. 1970), 
330 F. Supp. 235 (E.D. Tex. 1971), aff’d 447 F.2d 441 (5th Cir.), 
stay denied sub nom. Edgar v. United States, 404 U.S. 1206 (1971).



4

This is not a case in which the lower court did, or this 
Court should, attempt to delimit the permissible remedy. 
Elimination of the features of the Texas system which 
discriminate against Mexican-Americans will also eliminate 
features which discriminate against (at least some of the 
Texas) poor, because in this case the proof showed a cor­
relation between (district) taxable property wealth and 
personal income. That identity may not occur elsewhere; 
some large cities in other States have significant low-income 
and minority populations but high property value on a 
district-wide basis as the result of past capital expendi­
tures. These cities also have a “municipal overburden” 
which affects their ability to raise funds for educational 
purposes. The remedy suited to eliminating the discrimina­
tion proved and found inherent in the present Texas sys­
tem may not be suited to discriminatory features of other 
State educational funding systems. The primary interest 
of amicus here is that this Court affirm the judgment below 
because it is plainly correct, without passing upon more 
general questions which are not necessary to decision here 
and the resolution of which must depend upon the circum­
stances of each individual case.



5

ARGUMENT

I.
The Judgment Below Can and Should Be Affirmed 

Upon the “More Narrow” Ground of Decision by the 
District Court: That Texas’ School Financing Scheme 
Worked a Substantial Discrimination Upon Predom­
inantly Minority School Districts Without Any Com­
pelling Or Even Rational Justification Therefor.

This case has been presented by the State of Texas and 
some amici as though it inevitably draws into question 
all aspects of education financing throughout the nation. 
While the District Court’s opinion and order can be con­
strued not only as invalidating the entire Texas system 
as it presently operates, but also as casting doubt upon 
the validity of similar schemes, they need not be so con­
strued. Rather, they should be read in the context of this 
lawsuit, initiated by specific plaintiffs, seeking specified 
forms of relief on the basis of the evidence and argument 
presented to the District Court. Whatever this Court’s 
views on the broader questions not necessary to the deci­
sion of this case, we urge that it administer justice to 
the plaintiffs in this case.

The amended complaint (App. 13) does not simply allege 
that the Texas education-financing system violates the 
equal protection clause. It claims, in behalf of all children 
of Mexican-American descent1 who attend schools in the 
Edgewood District (Para. 3), that the Texas system 
violates the equal protection clause because it results in

1 Nee, e.g., Hernandez v. Texas, 347 U.S. 475 (1954) ; Alvarado 
v. El Paso Independent School JDist., 445 F.2d 1011 (5th Cir. 1971) ; 
United States v. Texas Educ. Agency, No. 71-2508 (5th. Cir., Au­
gust 2, 1972); Cisneros v. Corpus Christi Independent School Hist., 
324 F. Supp. 599 (S.D. Tex. 1970).



6

significant disparities in financial support for education 
between the Edgewood District and other (predominantly 
Anglo) districts in the State, which occur solely because 
of differences in school-district property wealth and which 
are not reasonably related to any educational objective 
(Para. 12); and that the system thereby discriminates 
against Mexican-Americans (Para. 13).

The basic facts and conclusions pertinent to this narrow 
claim of racially correlated, unreasonable discrimination 
in education support were not disputed by defendants in 
the trial court.2 The existence of enormous disparities 
was patent. Further, the Pre-Trial Order (App. 43), 
after noting that the facts were generally not in dispute 
(App. 45), specifically reeites as conceded that the educa­
tional needs of children in certain named Texas school 
districts were no greater than the needs of children in 
the Edgewood district (Para. 24); that the educational 
costs in the named districts were no greater than those 
in the Edgewood district (Para. 25); and that more than 
95% of the children in the Edgewood district are of

2 For example, the motion which has been raised here: that the 
expenditure of financial resources for educational services, facilities 
and supplies is unrelated to the provision of educational oppor­
tunity (see pp. 13-17 infra), was not presented below, and appel- 
lees-plaintiffs had no occasion nor opportunity to rebut such a 
statement, which is at best contrary to generations of accepted 
educational practice.

While wê  subscribe wholeheartedly to the relevance and im­
portance of intangible factors in education, see McLaurin v. Okla­
homa State Bd. ofr Regents, 339 U.S. 637 (1950); Sweatt v. Painter, 
339 U.S. 639 (1950) ; Coleman, J., et ah, Equality of Educational 
Opportunity (1966), we are equally cognizant of the enormous 
impact of resource allocation upon educational offering and oppor­
tunity. See generally, Guthrie, J., et ah, Schools and Inequality 
(1971). These views do not, however, compel identical expenditures 
for every student any more than that result is compelled by the 
decision below interdicting a system which provides the victims of 
racial discrimination with the fewest dollars, and those more fortu­
nate who have lesser needs with the greatest resources.



7

Mexican-American descent (Para. 30), a far higher per­
centage than in the named districts (Para. 31).

That expenditure levels are lowest for Texas districts 
with heavy concentrations of Mexican-American students 
was amply proved and specifically found as a fact. Pro­
fessor Berke’s affidavit contained sample data showing 
that the ten wealthiest Texas districts, spending $815 per 
pupil, contain 8% minority pupils, whereas the four 
poorest districts, spending* $305 per pupil, contain 79% 
minority pupils (App. 200-03). In addition, random sample 
data collected and analyzed by the U.S. Commission on 
Civil Eights and introduced into the record showred a 
strong correlation between the proportion of Mexican- 
American students in Texas school districts and expendi­
ture levels (App. 98-99). Relying on these uncontroverted 
data,3 the District Court explicitly found that Mexican- 
American students were discriminated against. 337 F. 
Supp. at 285.

Appellants try hard to ignore this significant fact by 
asserting that “ the court did not rely at all on racial 
considerations in its determination of unconstitution­
ality. . . . ” Brief for Appellants, p. 23. But this is not 
a case such as Serrano v. Priest, 5 Cal. 3d 584, 487 P.2d 
1241 (1971) or James v. Valtierra, 402 U.S. 137 (1971), 
where the racial factor was either absent or subordinated. 
Plaintiffs are all Mexican-Americans. They claimed relief 
as and for Mexican Americans. And their claim based on

3 An affidavit filed by Dr. Arena noted the past history of 
racially segregated housing and education in Texas. See also, e.g., 
United States v. Texas Educ. Agency, supra; Cisneros v. Corpus 
Christi Independent School Dist., supra, aff’d No. 71-2397 (5th 
Cir., August 2, 1972) ; Black shear Residents Org. v. Housing Au­
thority, Civ. No. A-70-CA-51 (W.D. Tex., Dec. 3, 1971) ; Graves v. 
Barnes, Civ. No. A-71-CA-142 (W.D. Tex., Jan. 28, 1972) (3-judge 
court).



8

race was specifically upheld. Nothing this Court does, 
therefore, should deny them relief to which they are 
entitled.4

II.
The Judgment Below Also Can and Should Be Af­

firmed On Its Holding That, Based Upon the Evidence 
Presented to the District Court, the Texas School Fi­
nancing System Impermissibly Links Wealth and Edu­
cational Opportunity.

A related claim of plaintiffs—that the Texas system 
discriminated against them as poor citizens—was also 
resolved in their favor. Affidavits filed with the District 
Court detailed the case for a correlation between lower 
levels of support and poor districts. See, e.g., Berke 
Affidavit, App. 193-200. District wealth was measured 
exactly as the State mandates that it be measured—by 
market value of all taxable property per student. No one 
contests the existence of this correlation, or the obvious 
fact that poor districts “are systematically incapable of 
raising as many education dollars as rich districts.” 
Affidavit of Prof. Morgan, App. 241; Affidavit of Dr. 
Webb, App. 223-25.

Plaintiffs went further, however, and showed a correla­
tion between the poverty of especially poor school dis­
tricts, such as Edgewood, and the poverty of residents 
in such districts. See Berke Affidavit, App. 200. Defen­
dants did not contest this evidence in the District Court,

_4 WtattiCT the solution adopted by the Texas Legislature to end 
discrimination against Mexican-Americans will, upon scrutiny by 
the court below, be found to pass muster under the equal protection 
clause upon other grounds, will depend upon the contours of the 
new financing scheme enacted, and thus other constitutional ques­
tions are not appropriate for resolution by this Court at this time.



9

and the Court expressly found for the plaintiffs that the 
poorest and richest districts by taxable property wealth 
were also, respectively, the districts with the lowest and 
highest income. “As might be expected,” the Court found, 
“ those districts most rich in property also have the highest 
median family income and the lowest percentage of 
minority pupils, while the poor property districts are 
poor in income and predominantly minority in composi­
tion.” 337 F.Supp. at 285.

On this appeal, the District Court’s findings with respect 
to race and income are termed “unsound factual assump­
tions.” Brief for Appellants, pp. 21-25. But the argument 
made against the District Court’s finding of fact is based 
entirely on evidence and reasoning not presented to that 
Court, and is in any event both weak and not pertinent 
to the issues.

The argument raised by Appellants, and by some amici 
curiae, see Amicus Brief of Various Attorneys General 
and Others, pp. 66-70; Amicus Brief of Sup’t of Schools, 
Los Angeles, and Others, pp. 22-25, is that data from 
various sources show that personal income does not neces­
sarily correlate with property value in school districts, 
and that the proportion of Mexican-Americans does not 
necessarily correlate with expenditure levels. Neither the 
data nor the login supporting this argument was brought 
to the District Court’s attention. The Court’s finding must 
be judged on the basis of the uncontroverted evidence 
presented to it. Whether a correlation exists in Texas 
between property wealth and income, or race and support, 
by district are “adjudicative,” not “legislative,” facts as 
Appellants contend. Brief, p. 22. The issue is not whether 
any of the districts involved is “poor,” as Appellants mis­
takenly suggest, but only whether the poorest and richest 
districts, as measured by taxable property, are also re­



10

spectively the poorest and richest when measured by per­
sonal income. The district court’s finding in this regard 
is amply supported by the evidence of record.

Even if Appellants’ arguments and data are considered, 
the District Court should be upheld. Much of the material 
on which Appellants and other amici rely pertains to States 
other than Texas. See Brief, pp. 22-23. The only argument 
presented by Appellants which is probative of the issues in 
this case is that made in a recent law review article.5 The 
argument is quoted at length in Appellants’ Brief, pp. 21 
and 24, and is essentially that the correlations testified to 
by Professor Berke are doubtful because the middle groups 
of districts do not show a consistent pattern. Actually, 
Professor Berke specifically addressed himself to the issue 
raised by Professor Goldstein. He said in his affidavit that, 
“while the relationship [of income and expenditures] near 
the average are somewhat mixed, they do not work against 
the prevailing pattern because the range (only $600 in 
income) is too small to be meaningful.” App. 200. He then 
referred to a graph, App. 201, prepared at the Policy Insti­
tute, Syracuse University Research Corporation, which 
vividiy demonstrates the correlation. A similar argument 
and demonstration was made in his affidavit with respect 
to the correlation between race and expenditures. App. 204.

Appellants were well aware at the trial level of the over­
lap commented on by Professor Goldstein. Among the cross­
interrogatories propounded to Professor Berke were the 
following questions and answers (pp. 32-34) :

“Q-68 In view of your statement at page eight of 
your affidavit that, ‘The correlation between the propor-

6 Inter district Inequalities in School Financing: A Critical Anal­
ysis of Serrano v. Priest and its Progeny, 120 U. Pa L Rev 504 
(1972).



11

tion of Mexican-Americans and Negroes in the schools 
and the quality of school services is precisely the re­
verse of the income-school services relationship. That 
is, the lower the proportion of Mexican-Americans and 
Negroes, the higher the school expenditure the higher 
the proportion of minority group enrollment, the lower 
the resources devoted to education.’, how do you explain 
the fact that in Table I, page six of your affidavit, that 
a sampling of school districts with a 32 percent ratio of 
minority pupils has $544.00 of state and local revenue 
per pupil when a sampling of districts with lower ratios 
of minority pupils, 23 percent and 31 percent, have 
lower state and local revenue per pupil [$483.00 and 
$462.00 respectively] ?

“A-68 We’re dealing with the same confusion in 
reading the figures that we have been earlier. The 
marginal differences in the center of a range are not 
significant nor determinative. The overall pattern is 
and the extremes are, and I think I’ve already covered 
that in regard to income.

* * *
“Q-71 How do you explain in Chart I at page 11 of 

your affidavit the fact of the districts sampled those 
districts with a percentage of Mexican-American en­
rollment of from 20 percent to 29.9 percent had higher 
per pupil expenditures of state and local revenue 
[$484.00] than those districts sampled with a per­
centage of Mexican-American enrollment of from 10 
percent to 19.9 percent [$457.00] ?

“A-71 The fact that the two sets of districts with the 
lowest proportion of Mexican-Americans are slightly 
inverted in regard to the order of the other districts 
is probably the least important factor on that entire 
table. What is important is that the districts with the



12

lowest proportions of Mexican-Americans have the 
highest school expenditures, the districts with the 
highest proportions of Mexican-Americans have the 
lowest school expenditures, that the patterns is ex­
ceedingly well-marked and obvious, and that the differ­
ence of less than 20 some dollars per pupil in those top 
two sets of districts should not distract from the clear 
and marked disparities between the highest proportion 
of Mexican-American districts with only $292.00 per 
pupil and those at the top with approaching $500.00 per 
pupil.”

No comment whatever was made by Appellants on this 
issue in their trial brief. Now, however, they raise the 
matter on the basis of a footnote in a law review article. 
The District Court accepted Professor Berke’s analysis, 
which was subject to critical review by defendants, as 
were his credentials as an analyst of social science research; 
its finding was proper and amply supported.



13

III.
Many Issues Discussed by Appellants Need Not Be 

Resolved by This Court In Determining This Appeal, 
and They Are Problematical On This Record In Light 
o f Appellants’ Failure To Develop Them Below.

An issue on which much argument has focused in this 
Court is whether educational expenditures are in fact re­
lated to the quality of education supplied. Unlike many of 
the other issues argued by Appellants, this one was at 
least raised by them before the District Court. The claim 
has changed materially, however, and much that is now 
presented in its support was never presented to the Dis­
trict Court.

Defendants at the trial level did not question the fact 
that the cost and quality of education may be related. They 
contended only that the amount spent “does not necessarily 
determine the quality of the education which the students 
of the school district will receive,” Pre-Trial Order, Para. 
4(f), App. 44, and that the quality of education “cannot be 
determined solely on the amount of money spent per stu­
dent,” Defendants’ Proposed Finding of Fact, No. 30, 
App. 74. (Emphases added.) The basis for this argument, 
moreover, was not the research data now presented to this 
Court, but the assertion that costs vary within geographical 
areas, and managerial capacities differ from district to 
district.6 The District Court’s implicit finding that cost 
and quality are related is entirely consistent with defen­

6 Defendants’ full argument in their Trial Brief on this point is 
as follows (p. 17) : “First, the plaintiffs have apparently come to 
the somewhat questionable conclusion that educational equality 
can be measured solely on the basis of the dollars available per 
student. This completely evades the pure facts of life—-costs vary 
dramatically within a geographical area as large as Texas, and it 
presupposes that the managerial abilities of all school districts, 
their governing bodies and administrations are of equal ability.”



14

dants-appellants’ trial argument. But appellants go much 
further in this Court. They argue that the District Court’s 
decision must be reversed because it is not clearly enough 
established that “quality is money.” They refer to the 
Coleman Report and other highly complex social science 
material as proof that education-finance reform, at least 
beyond a minimum support level, is pointless. The phrase 
“quality is money” comes from a book,7 rather than from 
anything in the record of this case. This Court need assume 
no such sweeping finding by the District Court. All that 
the decision below signifies is that the money differences 
proved by plaintiffs in this ease are material enough to 
warrant judicial intervention in light of their relationship 
to the other factors present, including race and poverty.8

Appellants invite this Court definitively to settle the 
extraordinarily complex dispute about money and achieve­
ment. The invitation should and must be declined. The 
District Court had ample evidence before it to warrant

7 Coons, Clune & Sugarman, Private Wealth and Public Educa­
tion 25 (1970).

8 To be educationally material, expenditures need not be shown 
to correlate with “achievement,” as defined by the educational re­
search professional. Dr. Coleman and others are interested in 
whether expenditure differences affect achievement levels in the 
basic academic skills, such as reading and writing, as measured by 
tests most responsible educators concede are socially biased and 
scientifically primitive both in conception and in administration. 
However, quality is not just achievement in basic skills, but access 
to aU the material and non-material facilities and resources that 
experience has led us to believe are related to enabling students to 
become better citizens, earners, and human beings. A  feeling of 
self respect, the ability to perform a manual skill, special capabilities 
of one sort or another, may be as important in terms of the objec­
tives of public education as reading or writing achievement in 
English— especially if English is the student’s second language. 
Furthermore, substantial evidence exists that money spent on 
teachers, or spent creatively, does make a difference even as mea­
sured by achievement test scores. See, e.g., Guthrie, J., Schools and 
Inequality (1971).



15

its implicit finding that the money differences in this case 
are material.9 No effort was made to challenge the evi­
dence proving disparities in educational services and 
achievement, and none is made now. The attack launched 
is against a principle—“quality is money”—that has noth­
ing to do with this case, and the evidence and argument 
marshalled for the attack proceed on an extremely narrow 
definition of quality (i.e., achievement in basic skills), and 
is only one side of a highly controversial subject. Even 
if the subject were pertinent to this case, it should have 
been explored below; it would have been had it been prop­
erly raised by appellants.

Most of the arguments made in this Court to show that 
rational or compelling interests exist to support the pres­
ent Texas scheme are advanced for the first time. This 
is not to say these arguments have merit; on the contrary, 
they are frivolous. But whatever arguable merit they may 
have, they are not properly before this Court, since under­
lying them all are issues of fact and law that require hear­
ing and argument at the trial level. The sole rationale

9 The complaint alleged that “ the children in the Edgewood Dis­
trict are provided a substantially inferior education compared to 
the children in other . . . districts.”  Para. 9, App. 21. (Emphasis 
added.) Affidavits demonstrated that cost was related to quality 
among the relevant Texas districts by several measures, including 
professional salaries, the degrees held by teachers, the proportion 
of teachers on “ emergency” permits, student-counselor ratios, the 
number of professionals per 100 students, drop-out rates, achieve­
ment levels, etc. Berke Affidavit, App. 209-214; Morgan Affidavit, 
App. 241. The Superintendent of the Edgewood School District, 
Dr. Cardenas, specifically and eloquently testified to his funding 
problems, pointing out that, because of its sharply lower level of 
support, Edgewood “cannot hire sufficient qualified personnel, nor 
provide the physical facilities, library books, equipment and sup­
plies afforded by other Bexar County districts.” App. 234. And 
he documented the inadequate space and maintenance of Edgewood 
schools, their inadequate libraries and curriculum, the extremely 
large classes, the lack of counselors, the loss of federal matching 
funds, and the far higher-than-average dropout rate. App. 234-238.



16

for the present Texas scheme raised below—the need to 
foster and preserve local autonomy—was appropriately dis­
posed of by the District Court. Furthermore, the opinion 
in this case rests, not only on the “compelling interest” 
aspect of equal protection, but also on the ground that not 
even a rational basis exists to support the discrimination 
inherent in the Texas scheme.

Among the arguments raised for the first time in Appel­
lants’ Brief are the claims that the only certain result of 
the District Court’s ruling will be to put more dollars in 
the pockets of teachers, and that the ruling will exacerbate 
the problems of inner city schools. Appellants’ Brief, pp. 
40-45. The Amicus Brief for various Attorneys General 
claims that the ruling below will destroy the fiscal powers 
of the State legislatures; will lead to a shift from the 
property tax to other forms of taxation; will compel full 
state funding, with huge increases in overall spending; 
and, once again, will adversely affect the interests of urban 
areas and racial minorities. Brief, pp. 17-35, 83-99; in 
short, the same dire predictions which this Court has 
heard prior to its major decisions, such as Baker v. Carr, 
369 U.S. 186 (1962).

Obviously, whether any or all of these things might come 
to pass is dependent upon the initiative of the Texas 
Legislature and not the judgment below. That teachers 
may get increased pay if Edgewood receives more funds 
is hardly a ground for criticism, even if the assertion were 
properly proved. The State is obliged only to eliminate 
the offending discrimination. This may be achieved by 
equalizing at any support level, or by basing disparities on 
rational policy grounds. The flexibility allowed State 
legislature under the District Court’s flexibility allowed 
State legislatures under the District Court’s rationale is 
broad indeed, and does not compel centralized financing



17

or control. Neither does the opinion create problems for 
inner city schools which they do not face today. Legisla­
tures will obviously be free to adjust distribution formulae 
to provide for greater costs or needs associated with urban 
schools, or schools with high concentrations of low 
achievers.

The contention that Texas allows discriminations in sup­
port levels in order to allow and foster local control is, as 
the District Court found, not even a rational justification 
for the system. “Not only are defendants unable to demon­
strate compelling state interests for their classifications 
based upon wealth,” the Court ruled, “they fail even to 
establish a reasonable basis for these classifications.” 337 
F. Supp. at 284. Local control implies the availability of 
resources sufficient to fund more than a minimum (often 
a State mandated) program. Districts like Edgewood 
have few local decisions to make. If local control and 
choice is the objective of the Texas system, the system 
fails to achieve its aim in many districts—especially dis­
tricts which are predominantly poor and non-white. 
Furthermore, the extent of local control that actually 
exists is a matter of considerable dispute. State require­
ments now mandate much that local districts once used to 
determine, not because courts have ordered centralization, 
but because State legislatures have chosen it. The district 
court correctly perceived the lack of any correlation with 
reality in the arguments presented by the State.



18

CONCLUSION

The judgment below should be affirmed and the deter­
mination of the proper remedy left to the court below in 
the first instance.

Respectfully submitted,

A bbah am  S ofaer

N.A.A.C.P. L egal D efense and 
E ducational  F u n d , I n c .

By:

J ack  G reenberg 
J ames M. N abbit, III 
N orman  J. C h a c h k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for proposed 
Amicus Curiae

School of Law
Columbia University
New York, New York 10027

Of Counsel



MEILEN PRESS INC. —  N. Y. C. P »  219