San Antonio Independent School District v Rodriguez Brief of Amicus Curiae

    r: jhC*



VI

PAGE
Hawaii Public Education Department, District Sum­

mary of School Expenditures, 1970-71 50
Howe, Anatomy of a Revolution. Saturday Review,

Nov. 20, 1971, 84 5.38.41
Hutchinson, State - Adyninistered Locally - Shared

Taxes (1931) 40,41
Jencks, The Coleman Report and the Conventional 

Wisdom, in Mosteller and Moynihan, On Equal­
ity of Educational Opportunity (1972) 58

Johns, (ed.), Alternative Programs for Financing 
Education, National Educational Finance Proj­
ect, Volume V (1971) 29. 93, 95

Johns, (ed.), Economic Factors Affecting the Financ­
ing of Education. National Educational Finance 
Project, Volume II (1971) 26.102

Karst, Serrano v. Priest, 60 Calif. L. Rev. 720 (1972) 30
Kirp. The Poor. The Schools, and Equal Protection, 

in Harvard Educational Review, Equal Educa­
tional Opportunity (1969), 156 7,11

Kraft, U. S. Is Taxing Itself Too Little and Wrongly,
Baltimore Sun, January 24, 1972, 11A 27

Kurland, Equal Educational Opportunity in Daly
(ed.). The Quality of Inequality (1968) 81

Kurland, Equal Educational Opportunity: The Limits 
of Constitutional Jurisprudence Undefined. 35 
U. Chi. L. Rev. 583 (1968) 51

Lawyers’ Committee for Civil Rights, Valid Systems 
under Serrano v. Priest, Compact, Vol. 6, no. 2
(April, 1972)   29

Lutz, Can Property Tax be Replaced? Wall Street
Journal, February 9, 1972, 14 15

Maeroff, Suburban School Officials Fear Effect of 
a Freeze on Spending, New York Times, Febru­
ary 2. 1972 91

Marsh, The Taxation of Imputed Income, 58 Pol. Sci.
Q. 514 (1943) ..............................................................  24

Maryland Commission on the State Tax Structure,
Report (1971) ..............................................................  80

vtt

PAGE
Maryland Commission to Study Public Education

and Finances. Report '1952) 74,75
Maryland Commission to Study the State s Role in 

Financing Public Education. Background Infor­
mation (1970) 69

Maryland Commission to Study the State s Role in
Financing Public Education, Report (1970) ”9

Maryland Geological Survey, The Counties of Mary­
land. Their Origins, Boundaries and Election 
Districts (1907) ^

Maryland School Law Revision Commission. Report
(1968) 72,73.78,79

Maryland State Deportment of Assessments and
Taxation. 2Sfh Biennial Report (1971) 71

Maryland State Department of Education, Experi­
ence of Teachers and Principals, September,
1969 82

Maryland State Department of Education, Selected 
Financial Data, Maryland Public Schools, 1969- 
70. Part I 82

Michelman, On Protecting the Poor Through the 
Fourteenth Amendment, 83 Harv. L. Rev. 7
(1970) 6,31

Mosteller and Moynihan, On Equality of Educational
Opportunity (1972) 58,99

Moynihan, Can Courts and Money Do It? New York
Times, January 10, 1972, 24 E 27,61

Moynihan, Sources of Resistance to the Coleman 
Report in Harvard Educational Review, Equal 
Educational Opportunity (19691,25 57

Myers, Second Thoughts on the Serrano Case, City
Magazine, Vol. 5, No. 6, 41 (Winter 1971) ......  8, 93, 94

Nation’s Schools, May 1972 ............................................  100
New York State Commission on Quality, Costs and 

Financing of Elementary and Secondary Educa­
tion Report (1972) .................................................. 33,90,91



Vlll

PAGE
Perlman (ed.), Proceedings of the Maryland Consti­

tutional Convention of 1S67 (1 9 2 3 ) ................. 72
President’s Commission on School Finance, Review 

of Existing State School Finaiice Programs 
(1972) ' ............... 100,102

President’s Commission on School Finance, Schools,
People and Money, Final Report (1972) 31, 60

Rand Corporation, How Effective is Schooling (1972) 60
Rhodes, Lay Participation in School Budget Develop­

ment in Maryland 76
Ridenour and Ridenour: Serrano v. Priest: Wealth 

and Kansas School Finance, 20 Kansas Law Re­
view 213 (1972) 67,68

Sacks, City Schools, Suburban Schools: A History
of Fiscal Conflict (1972) 98

Sartorious, The Fortunes of Equalization in Mary­
land Since 1920 (1959) 75,76,77

Schaefer, Book Review, 84 Harv. L. Rev. 1558 (1971) 16
Schoettle, The Equal Protection Clause in Public

Education, 71 Colum. L. Rev. 1355 (1971) 104
Select Committee on Equal Educational Opportunity, 

United States Senate, The Financial Aspects of 
Equality of Educational Opportunity and In­
equities in School Finance (1972) 85.87,88.89

Senate Select Committee on Equal Educational Op­
portunity, 90th Congress, 2d Session, Hear­
ings 9. 12, 13, 20, 22, 23, 25, 30, 51, 64, 72, 92, 98,100

Simons, Economic Policy for a Free Society (1948) 43
Simons, Personal Income Taxation (1938) 24
Sizer, Low Income Families and The Schools for

Their Children, 30 Pub. Admin. Rev. 340 (1970) 57
Smith, Equality of Educational Opportunity: The 

Basic Findings Reconsidered in Mosteller and 
Moynihan, On Equality of Educational Oppor­
tunity (1972) ................................................................

*.x

PAGE

Spjglrr. Address to the Maryland Association of 
Counties. January 20. 1972 

Stapleton. Educational Progress in Maryland Public 
Schools since 1916 (1959)

Strayer and Haig. Financing of Education in the
State of New York (1923) 73

Surrey and Warren, Federal Income Taxation (I960) 24
The Growing Edge Committee, The Maryland

Schools and Mid-Century Needs 76
The Staff Characteristics Committee, Maryland’s

Twenty-four Instructional Teams 76
U. S. Commission on Civil Rights, Racial Isolation

in the Public Schools (1967) 57
U. S. Office of Education, Equality of Educational

Opportunity (1966) 55
United States Office of Education, Finances of Large- 

City School Systems: A Comparative Analysis
(1972) ...............................................................................  90

Vickery, Agenda for Progressive Taxation (1947 ) 24
Washington Post, November 23, 1971, C-l 82
Webb, Grants in Aid: A Criticism and A Proposal

(1920)   40
Willis, A Program of Financing School Construction 

Designed to Safeguard the Current Operating 
Program in Maryland (1959) 75

Wise, Rich Schools, Poor Schools (1968) 5
Wise, School Finance Equalization Lawsuits: A  

Model Legislative Response, 2 Yale Review of 
Law and Social Action 130 (1972) 82

Wise, The California Doctrine, Saturday Review,
November 20, 1971, 78 6, 30

Woollatt, The Measurement of Cost in Maryland
Public Schools (1959) ...............................................•> 75



X

PAGE

Woollatt and Zimmerman. A \ m u 7 o !
the Maryland Taxpaying Ability of Margin ^
Public School Systems < I960)

Wynne, The Politics of Accountability: P^bhc In or- ^
mation About Public Schools (1972)

Yudof and Kirp. Serrano in the Political Arena.^
Yale Journal of Law and So JQ4
(1971) „  ,

Zimmerman, Fiscal Adjustments Over a Century ?g

<1959) ........... ., . . .
a AArciiror The Tax Potential of Mary- Zimmerman and Walker, 1 ne iax  75

land: State and Local
Zukotsky. Taxes and Schools. The New Republic. ^  

June 17, 1972, 20

In Tm -.

Supreme Court of the United States

October Term, 1972

No. 71-1332

SAN ANTONIO INDEPENDENT SCHOOL
DISTRICT. Ef AL„ Appellants,

v.

DEMETRIO p. RODRIGUEZ, nr

0N ^  from the U nite,  ^  ~  Court non 
the W estern District of Texas

b r i e f  o f  a m i c i  c u r i a e  IN s u p p o r t  
o f  a p p e l l a n t s

i n t e r e s t s  o f  a m i c i  c u r i a e

. . , ruriae are representatives of state governments
Amici Curiae are F h subd1Vision,

or political subdivisions m 30 statea Each s u c h ^  ^  ^

like all American sub Serra„o-Rodriguez doctrine,
financing incons ste American subdivisions, hasEach such subdivision, like all Americ ^

traditionally confided responsi to . )egisiature. In
allocation of pub ic “ V  of the sums necessary to 

" e T y s m m  of'sehool financing of each state and sub-



2

division to conform to the Rodriguez doctrine, each of the 
undersigned states and subdivisions would suffer severe 
financial stringency and interference with its ordinary bud­
get making process and the democratic allocation of public 
resources within its borders.

The undersigned subdivisions have a common interest in 
resisting the imposition upon their fiscal choices in regard 
to taxing, spending, or the relation between them of the 
doctrine of judicial “strict scrutiny" which would be im­
posed upon educational and other spending decisions by 
plaintiffs and by the Court below. Each and all of the 
undersigned subdivisions rather favors the application to 
state taxing and spending decisions of those canons of 
restraint which have traditionally immunized such deter­
minations. state and federal, from intensive judicial review  ̂
They believe required application of the standards which 
have traditionally governed judicial review of taxing and 
spending programs:

First that “there need be no relation between the class 
of taxpayers and the'purpose of the appropriation’;  (New 
York Rapid Transit Company v. New York. 303 U.S. 5 3 
(1938))' “ if the tax. qua tax. be good * * * and the purpose 
specified be one which would sustain a subsequent and 
separate appropriation made out of the general funds of he 
treasurer, neither is made invalid by being bound to the 
other in the same act of legislation” Cincinnati Soap Com- 
pany v. U.S.. 301 U.S. 308 (1937), see Carmicluiel v. South­
ern Coal Company. 301 U.S. 495 (1937):

Second, that the appropriate standard by which state 
tax legislation is to be judged is the standard of Madden tx 
Kentucky. 309 U.S. 83 (1940): “In taxation, even more than 
in other fields, legislatures possess the greatest freed 
in classification. Since the members of a legislature nec s-

• h co n * * "* *  which this
* Um,U*t, > 1 o.nNtitutionality can

O -— '■»> ••• fc— • lhP r Ur  hcit demonstration that 
b e ......- m e  only by ^ X̂ prc-lvB discrimination
* classification us a '«• l scs. The burden is on
against particular persons and c ^  ^  tQ negative

^ " S ^ i - ^ i c h  might support it." 309 U.S.

J Third, that .he oppropriato stamdardl^or

expenditure programs no h Amendment is that of
culiarly reached by the 471 487 ,1970) with its
Dandridge v. Willtams. » • ^ Constitution does not
stress on the proposition t te offlCials charged
empower this court to allocating limited public
with the difficult potential recipients” ,
welfare funds among the myr 548> 584-

- S I “ " " - - 619' 644 ,1939U
Fourth, that in a federal A g n iz e s  rights

wealth of political subdivisions t e s j *  rc_
State action activating any ^  where the tax prop-
view: “the use o taX“ ‘ u constitute an invidious
erty is located does not, of Use on„ , Board o/
discrimination or unreasona District of Muskogee V.Education of fndependent Sclwol Dw o , »

Oklahoma. 409 F.2d 665 ' In devising their
..have the a t tr ib u te  powers m d e ^  ^  ^

T t X l n  edSVre o,Ohio, Inc. , .  Bowers. 358 U.S. 522.
526 U 95 n  constitutional guarantees reach only action by 
he ate nd not “the inaction implicit in the failure to en-

3



4

act corrective legislation” . Adickes v. Kress and Company.
398 U.S. 144, 167. note 39 (1970).

The present case, more than any other case before the 
Court in the last decade, constitutes a threat to the au­
tonomy and independent existence of state and local gov­
ernments and indeed to the power of the purse of legisla­
tures that is the enduring and perhaps the most important 
legacy of seven centuries of Anglo-American constitutional

history.
Since the brief of Texas treats fully the questions sur­

rounding the applicable standard of review, the presen 
memorandum will summarize the impact of the issues at 
stake in the present litigation upon the educational, socia , 
revenue and expenditure policies of the signatory gov­

ernments.

DANGERS OF A FUNDAMENTAL INTEREST’ 
HOLDING

If this court accepts plaintiffs’ invitation to pronounce 
educational finance a “fundamental interest ’ activating a 
strict standard of review, a wide range of other govern­
mental programs, each of which can be plausibly repre­
sented as involving fundamental interests w i ^ e ^ t o  
attack The emotional arguments surrounding the distnbu 
tion of medical care, for example, are at least as compiling 
as those surrounding education.* Principles invoked wi 
respect ,0  elementary and secondary education can read.ly 
be extended to higher education in a society in w i 
regarded as ever more essential." The application * **

ration known as in°'th" ’5
is presently orchestrating a barrage of lawsuits mft no doubt will take a greatinterest ive area of public

** Indeed, it is difficult to think of a morê regre ve V ^
ioining the labor

5
. . sod public health

i l l s  can be ‘ will almost certainly

c — ne
Howe has noted. ndiustment and diffi-

S l ; r ^ - ^ e ga t io „ ,M H o .e .o P.

cit. page 38. infra-‘ . lakcn place among the

^  " c ^ a n d  Sugarman, the

j r r n p = f ^
with scornful r e f e ^ ^ ^ n s a t o r y  relief and is also 
Shapiro with its dem earlier work by Wise,
filled with scornful explicit demand for
Rich Schools. Poor c , otal state assumption of
something closely apP™“  U u r e  among districts. The
costs or equality mactua 'P  profess to prefer a
Messrs. Coons. Clune “ " I d  act to provide each 
system under which the in which the level
district with « £ £ £ % £ % >  district would in part 
of educational spending

________ _ . . .  . i Pmfessor Coons has al-
force before graduation from ig sc • principle to publicly- 
readv suggested extension of .he ^  and Social Acnon
suppomd j » " j “ " f f SA S „ g  S m  as an "inviting targe. .

ss (1969)'



6

be a function of the willingness of district voters to tax 
themselves. Under this regime the education received by 
each child would, it is said, continue to be a function of the 
political sentiments of his neighbors, though not necessarily 
of his own sentiments or those of his parents. It is easy 
to envisage the welter of law suits which will ensue if this 
Coons thesis is accepted -  suits, for example, by Protestant 
school children aggrieved at the low level of public school 
taxation in predominately Catholic cities, etc. e ong 
term viability of the limitations proposed by Coons, Clune 
and Sugarman upon a doctrine of absolute equality wou 
indeed be in doubt. Indeed. Mr. Wise, repaying the com­
pliments’ directed at him by Coons, Clune and Sugarman, 
has pointed out that the California decision does not clearly 
adopt the Coons-Clune-Sugarman rule. Wise, The Cali­
fornia Doctrine, Saturday Review, November 20, 1971, pg.

78.
The Messrs. Coons, Clune and Sugarman would leave 

some nominal scope for local autonomy by merely equal­
izing district taxing resources. Mr. Wise would equalize 
both taxing resources and taxing rates. He would not go 
so far, however, as to prohibit the use of distinctions based 
on child characteristics in the allocation of educational 
funds Professor Michelman of Harvard likewise is an 
enemy of the Coons approach, see Michelman On Pro­
tecting the Poor Through the Fourteenth Amendment, 83 
Harv Law Rev., 7 at 54-59 (1970). Alleging that the Coons 
approach could result in inequities while an approach 
quWng equal expenditures for a foundation program 
with some local variations upward presents problems o 
iusticiability, he, as noted, goes on to favor "ins.stence on
channelling all the state’s educational expenditures into 
the common pool.” (83 Harvard Law Review at 58).
another legal commentator, Professor Kirp, not to be out- 

done, proclaims:

* -,**1  educational op-
S-rr^.r.S * *  ^ t h a t  the »c\wo\ »
. . . . . .  w-k .niiming initial du*

£  i Z E l a t i o n ,  in background, rn

i X «  home hie. and
r Z ,ng on C ecuvc ~  -  ton of the

tor equal achievement -  strc^  e,Tort in those schoo 
sta*e to make a greater 1 . ,  because their schoo
districts whose needs are g school. The state
children are less well develop schools
has a constitutional o g aS possible for m
which tvill compensate a ^  background. The

immense; the result well1 wor in Harvard

S c a S n a f ' — * « • * " “ * Opportunrtv

(19691 at 156, 169.)

feSS° r ^The Passow Report »f c»m
pensatory education s 11! thc child whose
i f  meeting the cducatmnal^ee ^  a good portion 
home environmen enters school ' Pas-

i r w ^ t o n  a  a  Public schoo,s, page 259V. 

Professor Kirp does however provide one helpful sug-

gestion. He notes. neCessary effort may seem
“The magnitude of the’ rreiiance on schooling as

to some to represent an ove a CQUrt wiU not
a tool for social ametorati.3 t ^  social policies

^  schotTor

and social priorities.” (at 169 n. 122).



0

Lest it be thought that Professor Kirp's position is an 
extreme one, it should be noted that he too is outdone by 
Professor Samuel Bowles of Harvard. Professor Bowles 
set forth the ideal of “equality of education opportunity 
in terms of the economic results of education . Bowles, 
Towards Equa\ity of Educational Opportunity in Harvard 
Review, Equal Educational Opportunity (1969) at 124. Pro­
fessor Bowdes goes on to urge:

“The allocation of unequal amounts of resources for 
educating Negro as compared to White children and 
poor as compared to rich children, (at 115).

It is clear that there are as many versions of what the 
Constitution requires as there are professors of law and 
education, and that the courts, if they admit a significant 
judicial role in this sphere, will be subjecting themselves 
to a barrage of conflicting law suits by exponents of con­
flicting theories.*

Counsel coordinating the Serrano litigation has made 
clear that the decisions are deemed of value not for the 
actual results obtained, which may indeed be counter­
productive in terms of the needs of urban districts (“Un­
less we are careful, we can be locked into a formula we 
don’t like for over a decade” Myers, Second Thoughts on 
the Serrano Case, City Magazine, Vol. 5, No. 6 pg. 41 
(Winter 1971) quoting Mrs. Sarah Carey, Assistant Di­
rector of the Lawyers’ Committee), but rather for their 
holdings that education is a fundamental interest. Mrs. 
Carey has noted:

“And then finally —  and this is an issue the press has 
ignored totally —  if education is a fundamental mter-

* See Berke and Callahan, Serrano v. Priest, Milestone or Mill-
stone 21J Public Law 23, at 69 (1972) (“the courts will once 
again he called upon to sit in judgment on school resource allocatio 
in a second or third round of post-Serrano litigation • )

»

Sr— **  ^
f - r i c h t  t<> an adequate 

In the criminal fu n d am en ta l right, the
drfrmc. ho.i been declare » * glalc has to put the 
S u p rem e Court has held th. tj ^  acUially fully 
defendant in a lranslated to mean
exercise that right. i Sfur'nished defense counsel; his 
if he is poor he must be fur hc must bc given

^  ^ sition with

i t s : *  .
pretation of the Serrano ^ ^ g ^ o f  ̂ w'hat he calls
not asked to dea w > that deal with the
‘fiscal equity/ | o ; nthne°rc haV c been two cases, in Vir-

The Serrano decision did declare eo^ of that
fundamental interest and ^  the way we spend

whatever kinds of pp ~rirninal defendant may
^ ' ’r u n t i /T h e  ?teudTnt may need transportation, 
he may need lunches, or special instructional aids.

(Senator Mondale) I understood Dr. Coons to say h 
J p X ’ no one will bring a lawsuit of that kmd now.

Did I understand you correctly?
(Dr. Coons) Yes, sir.
i Mrs Carev) Dr. Coons does not want to have ber- 

ran“  ouled up on its way to the Supreme Court.
(Senator Mondale) That is going to be quite a con­

ference in October.



10

(Mrs. Carov > Ultimately, 5 or 10 years the
road, there irill be coses that fhne from (hr funda­
mental interest interpretation just as there hat e been 
in the voting rights and criminal defense areas "

( Senate Select Committee on Equal Educational Op­
portunity, 90th Congress. 2nd Session. Hearings at pg. 
6868 ,< hereinafter cited as Mondale Committee Hear­
ings) (emphasis added).

It is evident that admitting a judicial role in this sphere 
will result in the crippling of essential governmental pro­
grams by a welter of conflicting legal commands. The 
existing system of multilevel grants in aid in many of its 
aspects makes effective budgeting difficult. When these 
difficulties are compounded by a number of conflicting de­
crees by state and federal courts, hasty and emotional 
legislative responses, and all the other predictable con­
sequences of the course being urged upon the court, it is 
by no means clear that the intended beneficiaries of the 
new rules will in fact benefit from them, or will benefit 
from them more rapidly than they would benefit from a 
process of public persuasion directed at the legislature. 
The recent experience in connection with welfare litiga­
tion in California, with its barrage of conflicting federal 
and state injunctions, special sessions of the legislature, 
fund shortages and executive cutbacks may supply a vivid 
illustration of what is in store for our educational system 
under the regime urged upon the Court here. The conse­
quences for school bond issues are also notorious. As 
noted by the court in Spano v. Board of Education, 328 
N.Y.S.2d 229 (Sup. Ct., Westchester County, January 17, 
1972):

“Many contemplated school construction projects it 
was urged are in jeopardy as a result of the refusal of 
municipal bonding attorneys to render the necessary 
certification as to no pending litigation which would 
impair the validity of the bond issue . . . Unless and

« ? ♦ M
•«r' • •*» vi. :
■i
| 4, ’•'  ̂ M* **' 4 *

in *.K.»
*4  • i t u‘,r?

t... W A l v irtu e  
w-rvetl by 

bond fi*

, . , i  or

.. > >.r r* \ w v r ta l years

. •» re there t* no stopping place in plaintiffs
lui.hcm s.fr. consistent with the sur-

reAhtarian logic whuh • . . s even

have lndT d’
llhcrc u little stopping place in the logic as distinct from 
Plaintiffs' intentions short of compulsory state,OP? r 
bewrding schools. Sec Kirp. The Poor. The Schools and 
Equal Protection, in Harvard Educational Review, Equa 
Educational Opportunity (1969), at 155-56. The principle 
that education should not be a function of parental wealth 
articulated by the Rodriguez decision and in the very title 
of the Coons, Clune and Sugarman book, is a politically 
debatable one on numerous grounds. It appears flatly in­
consistent with the thrust of Pierce v. Society of Sisters.
It would constitute constitutional compulsion of an or­
ganic relationship of the citizen to the state” within the 
meaning of Justice Holmes’ dissenting opinion in Lochner 
v. New York. But the maxim that “the child is not the 
creature of the state” evokes little sympathy from plain­
tiffs and their allies, some of whom have already declared 
their purpose to utilize the Serrano principle as a spring­
board further to constrict private schools and the right 
to private education: Thus Dr. Coons:

“ (Senator Mondale) In the absence of some kind of 
adjustment in the rich district, would you not actually 
be encouraging private schools for the rich. Would 
they not say, ’Well, we are in this trap where we can 
raise a lot of money to be sent elsewhere or we can put 
downward pressure on revenue for our local schools 
and simply spread all of our money on private schools



12

for our children.’ Since all the capital costs of con­
structing private schools is deductible from the taxes 
anyway, it is sort of publicly supported . . .

(Dr. Coons) May I answer that other question which 
you had about the rich district and its disincentives? 
It is an important question. * * *

I think the amount that would already be taken out 
in personal income and other statewide taxes for the 
general support of education would be enough so that 
most people would not be able to alTord both the sup­
port of public education and private education. At least 
there would not be a sufficient number of such people 
that there would be any but a fringe of districts in 
which the demography would be such that there would 
be so many very rich people that they would opt out 
of public education altogether. And, of course, it is up 
to the State as to whether they can do that. The State, 
after all, would set some kind of adequate minimum 
which every child should have available in public edu­
cation. A district could simply drop out, as it were; it 
would have to stay in the system. Being in and paying 
for that system, people are going to use it —  they are 
going to have to carry the burden of that local system, 
and so, there is a powerful incentive to stay in it and 
make it all work as a public system.

Was I responsive?
(Senator Mondale) Yes.”
(Mondale Committee Hearings, pp. 6883-84) (em­

phasis added).

Mrs. Carey, the Assistant Director of the Lawyers’ Com­
mittee sponsoring this litigation, went even further in out­
lining the possible attack on private schools:

“ (Mrs. Carey) On the private school issue, that is 
one that everyone kicks around. As a factual matter, 
I am not sure there’s any difference right now between 
the Scarsdale school system and Scarsdale with a 
private school system. It is just the admission prac­
tices that are slightly different. At present, it is a

U

» ‘>AiVC 
s». ! f> •.

• > c  :!jr . getting into a
• ill chan** things from

-  whether, if private
Archer '»•.. * * nonprofit corporations

• A " ' "  ' ’ V h X ;  «h“  V „ .«  be grounds for at-
and *o on. v.h< .h« r '  .u s ers’ Committee
u .k .n S thorn Th. ro >> . where white
case in Mississippi. »r« a prjvate school, for
parents trnsl to set up » • ’ • n ancj the court
the purP-’so o t ^ o n  the ground that 
^ X e ^ n  of* the constitutional man-

dUv' • if the Constitution declares education to be a 
/u ^ i e l t a l  interest, it might be that you could at- 
m-k private schools on that ground.

(Senator Mondale) The key to the Green case was 
deliberate segregation, white flight, des.gned to es- 
cape the court order.

(Mrs. Carey) That is right. _ .
(Senator Mondale) You might say there is a similar 

con st^ion a l principle, and that ™ .one can escape 
the public schools. Maybe that will be the law.

Go ahead.  ̂ . ___»
(Mrs. Carey) That is roughly what I wanted to say.
(Mondale Committee Hearings, pg. 6884) (emphasis 

added).

What plaintiffs seek to have the judiciary set aside is 
the operation in the sphere of education of the system of 
allocation of resources that in greater measure or less 
determines the distribution of every other commodi y 
this in a nation whose constitution, including the Four­
teenth Amendment to it, expressly recognizes and pro­
tects private property: “Absent constitutional mandate 
the assurance of adequate housing and the definition of 
landlord-tenant relationships is a legislative not a judicial 
function. Nor should we forget that the Constitution ex-



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Table of Contents
page

Interests of A mici Curiae 

Argument:
Dangers of a ‘Fundamental Interest’ Holding 
Destruction of the Fiscal Powers of American ^  

Legislatures
Undesirable Effects on the Tax System 23
Effective Compulsion of Full State Funding 28

35
Impairment of Local Control
Enforced Mediocrity and Reduction of Public ^  

Spending on Education
Lack of Relationship Eetween Educationai 

Spending and Educational Achievement

Lack of Relationship Between Property and ^  
Income

70
A  Representative State Aid Program
Adverse Effects on Interests of Urban Areas 

and Racial Minorities .......................................

Costs of the Relief Sought 100
107

Conclusion .....................................................

Table of Citations 
Cases

Adickes v. Kress and Company, 398 U.S. 144 (1970 ) 4,14
Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522

(1959) .............................................................................  *s’ A'
American Commuters Association v. Levitt, 279 F.

Supp. 40 (S.D.N.Y. 1967) ;
American Commuters Association v. Levitt, 405

F.2d 1148 (2d Cir. 1969) ...........................................  iy



11

PAGE
Ansell v. Howard County Council, 264 Md. 629, A.2d

(1972)   15
Board of Education of Independent School District 

of Muskogee v. Oklahoma, 409 F.2d 665 ( 10th
Cir. 196 9 )...........  3- 17

Bradley v. Milliken, No. 35257 (E.D. Mich. 1972) 62
Carmichael v. Southern Coal Co., 301 U.S. 495

( 1 9 3 7 ) ..........................  2,18,20,22,54
Cincinatti Soap Co. v. United States, 301 U.S. 308

(1937) 2, 20,21
Dandridge v. Williams, 397 U.S. 471 (1970) 3
Epperson v. Arkansas, 393 U.S. 97 (1968) 66
Evans v. Abney, 396 U.S. 435 (1970) 14
Forsyth v. Hammond, 166 U.S. 506 (1897) 45
Helvering v. Davis, 301 U.S. 619 (1939) 3
Jelliffe v. Borden, Civil No. 14821 (U.S. D. C. Conn.

1972) .......    15
Liggett Co. v. Lee, 288 U.S. 517 (1933) ........................  45
Lindsey v. Normet, 405 U.S. 56 (1972) ........................  14
Madden v. Kentucky, 309 U.S. 83 (1940) 2
Mclnnis v. Shapiro, 293 F. Supp. 327 (N.D. 111. 1968), 

affd sub nom Mclnnis v. Ogilvic, 394 U.S. 322
(1969) 5,17.20.51,53.69

Milliken v. Green, No. 13664-C (Mich. Cir. Ct. Ing­
ham County 1972) 62.64,65

Mills v. Lowndes, 26 F. Supp. 792 (D. Md. 1939) 74
Morton Salt Co. v. City of South Hutchinson, 177

F.2d 889 (10th Cir. 1949) _ 1S
Nelson v. City of New York, 352 U.S. 103 (1956) 19
New York Rapid Transit Co. v. New York, 303 U.S.

573 (1938)
Okaloosa County School Board v. Richardson, 40 

U.S.L.W. 2238 (N.D. Fla. 1971)
Parker v. Mandel, Civ. No. 71-1089-H (D. Md.

1972) 54’ 105

iii

PAGE

Serrano v. Priest, 5 Cal. 3d 534. 487 P.2d 124 0 9 7 1 ^ 1 .4 ,

Spano v. Board of Education, 328 N.Y.S.2d 229 (Sup ^
ct. Westchester Co., 1972) . 50

tt j ei 1 449 P.2d 130 (1968) —
! £ T o f VWisconsin v. J. C. Penney and Co., 311 U.S. ^

StewaM T h i n e  Co. ,  Davis, 301 U A M .  <1939 , 3

*

Constitutional Provisions, Statutes, and Rules
50

Hawaii, Acts of 1968, Ch. 38 5Q
Hawaii Revised Statutes, Sec. 27.1 
Maryland Acts of 1922, Ch. 383 
Maryland Acts of 1964, Ch. 17
Maryland Acts of 1967, Ch. 142 78) LZ
Maryland Acts of 1969, Ch. 754
Maryland Acts of 1970, Ch. 4 ........................................
Maryland Code, Art. 77, § 130 A  (g) ............................
Maryland Code, Art. 77, §§ 142-145 ...............................
Maryland Code, Art. 81, §§ 232 ff
Maryland Constitution of 1864, Art. VIII ....................
Maryland Constitution, Art. 13, § 1 ...............................

Miscellaneous

Advisory Commission on Intergovernmental Rela-
tions, State Aid to Local Government (1969) 72,100

Advisory Commission on Intergovernmental Rela­
tions, Who Should Pay for Public Schools
(1971) ...................................................  49,59

Anderson, Study in California: Financing Schools:
Search for Reform, Washington Post, May 21,
1972 ...................................................................................  54’ 95



iv

PAGE
Andrews, Tax ‘Revolution’, Wall Street Journal.

March 13. 1972 105
Bassett, Leaders of Urban Schools Oppose Dollar- 

A-Scholar, Baltimore News American, March 16,
1972 93

Berke and Callahan, Serrano v. Priest, Milestone or
Millstone, 21 J. Public Law 23 (1972) 8. 31

Bowles, Towards Equality of Educational Oppor­
tunity in Harvard Educational Review, Equal 
Educational Opportunity (19691,124 8

Bruner, 1941 Survey of the Maryland Public Schools
(1941) 74

Buder, City Tax Rise Linked to Fleischmann Pro­
posals, New York Times, Feb. 2, 1972 91

Center for Educational Policy Research, Education
and Inequality: A Preliminary Report (1971) 61

Central Advisory Council on Education, Children
and Their Primary Schools (2 vols. 1967) 58,59

Cohen, Policy for the Public Schools: Compensation
and Integration, 38 Harv. Educ. Rev. 114 (1968) 57

Coleman, Equal Educational Opportunity, in Har­
vard Educational Review, Equal Educational Op­
portunity (1969) 38

Coleman, Preface to Coons, Clune and Sugarman,
Private Wealth and Public Education (1969) 38,42,

43. 44, 48
Coleman, The Struggle for Control of Education,

in Bowers (ed.), Education and Social Policy:
Local Control of Education 64 (1970) 37,38

Conant, The Child, The Parent, and The State
(1959) 39’ 43 * * * * * 49

Cooley, Constitutional Limitations (2d ed. 1871) 45
Coons, Clune and Sugarman, A First Appraisal of 

Serrano, 2 Yale Review of Law and Social Ac­
tion (1971) 5,23,33,47,51,52,67,94.103,106

Coons, Clune and Sugarman, Private Wealth and
Public Education (1969) .......................... 5,11,17,73,94

v

PAGE

Cord:/.. A Word for the Property Tax. Fortune. May &
1972. 105 ,

Davies The Challenge of Change in School F™nnce’
D“ ”  National Education Association. Tenth An-

nual Conference on School Finance 199 (1967) 67, b» 
Dimond, Serrano: A Victory of S o r t s  for Ethics,

Not Necessarily for Education. 2 Yale Review 
of Law and Social Action 133 (1972) 60,95,103

Dorn, The Allocation of School Expenditures in ^  
Maryland Counties

Dorn, What Money Does and What It Does Not Do ^
(1959) „  Q1

Editorial. The New York Times, January 29, 1972 91
Editorial, Washington Post. May 31, 1972 .
Encyclopedia of Educational Research (1950) 09
Flexner and Bachman, Public Education in Mary­

land (1921)
Freeman, Address to the Annual Meeting of the Na­

tional School Boards Association (April 14,
1972)

Garvue, Modern Public School Finance (1969) .. 77
Goldstein, Inter-District Inequalities in School Fi­

nancing: A Critical Analysis of Serrano v 
Priest and Its Progeny, 120 U. Pa. Law Rev. 504 
(1972) 58, 8o, 93, 9b

Guthrie, Kleindorfer, Levin and Stout, Schools and
Inequality (1970) 58,61

Hand Chief Justice Stone’s Concept of the Judicial 
Function, in Dilliard (ed.), The Spirit of Liberty 
(1955) 107

Hardesty, The Relation of Expenditures in Higher 
Education to Expenditures for Elementary and 
Secondary Education 76

Harriss, Issues and Interpretations, 155 The Bankers
Magazine No. 2 (1972) ..............................................28,147

Havighurst, A Profile of the Large-City High School
(1970)   99



14

pressly protects against confiscation of private property 
or the income therefrom.” Lindsey v. Normet, 405 U.S. 56, 
74 (Feb. 22, 1972). The plaintiffs totally fail to respond 
to the problem created for them by the continuing sur­
vival of the “state action” doctrine, see Evans v. Abney, 
396 U.S. 435 (1970); Adickes v. Kress and Company, 
398 U.S. 144, 167 note 39 (1970). The state is not con­
stitutionally obligated to eliminate the effects of differ­
ences in private means of individuals, let alone differ­
ences in average private means of the subdivisions in 
which individuals reside. These propositions would seem 
self-evident, but they are not in the constitutional wonder­
land inhabited by plaintiffs. As Dr. Harley Lutz, Profes­
sor of Public Finance at Princeton, has recently written:

“It comes as quite a shock to be told that the prop­
erty tax, workhorse of the tax system, is unconstitu­
tional after so many years of reliable service. One 
can’t help being suspicious of the circumstances —  all 
the court decisions, in several states, have involved 
only school financing. The ‘rich’ and ‘poor’ municipal 
units must levy different rates of property tax for the 
support of all other local functions, but apparently 
the disparities of tax rates for these purposes are still 
constitutional; moreover, every state provides more 
or less state aid to local schools. Without considera­
tion of this fact, complaint about differences in prop­
erty values and tax burdens is overdone. * * * 
Mother Nature is primarily responsible for the dif­
ferences in real property values, and the contrivances 
of men have been aimed at manipulating municipal 
boundaries for maximum advantages. Topography, 
location and other natural features result in value dif­
ferences that cannot be eliminated. A given millage 
levy will obviously produce more revenue for a gov­
ernmental unit that contains high value property than 
it will for a unit that contains low value property. It 
would be as reasonable to hold that the Rocky Moun­
tains are unconstitutional because they are not flat

. , . .. .  ,  -v ,
* ** ' ; * -v- ‘ho samC

* VA- m ,v not have to
-• ” > *V'V!l„ urt wiU d -  do th.it a U.w in-

wa;t I- -  *-«• V  Y « .u -n  protection of the law be- 
(..nuly . .  <1 . - 1  ' I family with more

caUM- it can buy .i-ss ih.in m<j would then be
income Inequality of I ^  ‘ 1 p ty Tax be Re-

Wail1 S t r ^ " - n a l .  February 9. 1972. page 

14
tioiicve that the Rodriguez pnnci- 

Thcrc is no reason to , lionai expenditures or

P,c c;,n ^ / “ “ ' f  defendants have been informed
r ,„ly tUslr.ct ,n a university com-
that one »ca  > s(atc whcrc a Rodriguez suit has

T "  fled h”  commenced guarding itself against an tm- 
r” "  hie decision bv transferring various physical edu 

I  „  shop and audiovisual activities from the school 
d to the park board and library board. Of course 

X i n g  transfer, they may not be

the compulsory " " t i t h W i n g "  tha/their

X X  " l y  mean -  - -  *
ailrf of by fewer students from poorer homes. It *  

morl protoble however, that if Rodriguez is accepted.
the courts will feel bound, as they properly have in th 
the cour methods of evasion
school segregation cases, P . . . .v nomt a+
and to proliferate the Rodriguez principle to the point a.
which a corps of suitors** (or marshals) will relentless y

the possession by a ta\pa>e which upon onesSS» S S r i ^ r ^ v S h ' m u s ,  relentlessly he pursued

B" im  (US  C,°972r- -1 Vn 14 8211 where a federal district court on May lo. 
£ n ie A  pretinunary injunction to prevent the Town of Darien from



16

root out from local property-tax-supported budgets all ac­
tivities which raise the danger that someone might bo 
educated by them. Do the federal courts really wish this 
role? Do they regard it as consistent with the mainte­
nance of local or private initiative in a free country?

Thcpe is no reason to think that the judiciary, and par­
ticularly the lower federal and state judiciary, will pos­
sess any significant competence in this sphere. Typically 
and regrettably, constitutional cases raising important 
public issues are briefed on close schedules by lawyers 
heretofore possessing limited familiarity with the subject 
matter. This is not self-evidently the best means of mak­
ing available to a deciding tribunal pertinent informa­
tion. Rather it is a method of making public policy that 
places a premium on sloganeering — sloganeering of the 
sort that captivated the California and Texas Courts. In 
the end, it will set in motion forces that will lead to an 
increasing politicalization of the judiciary. Attention may 
properly be given to Justice Schaefer’s recent warning:

It is true, I think that the style of legal argument 
and perhaps even the technique of legal research have 
shifted in recent years. This impression cannot be 
documented, but it seems to me that much more than 
in the past the lawyer's quest has become a search for 
quotable words which, regardless of their initial con­
text, can be read in the abstract to bear upon the situ­
ation at hand. The pressure is thus toward a juris­
prudence of words or phrases divorced from facts and 
capable of generating new words and phrases with 
independent lives.” Schaefer, Book Review, 84 Harv. 
L. Rev. 1558, at 1559 (1971).

The present case constitutes a repudiation of methods of 
persuasion in favor of recourse to authoritarian decrees

erecting a public school in asserted violation of the Serrano prin­
ciple. Cf. also Anscll v. Howard County Council, 264 Md 629 
(March 6, 1972).

. -

£ * • « » (N
. . . . *. * ? I

t ;v  »•*
I a * r ‘1 : r' 1 ‘ *-r

t * I.. v
t.*. #*•:, t ; » . l  . { > « » : » < !  -*t *'•«».
irvM'hw.'.y h* ’•*.<- |K” 1‘  •-{ gr

r» 'live <4 the l-*rg

cr.-.fc:y « «  No
• ,r j c t i i  (K uw n. The

f.jtp.u’.nuud ctmven- 
.4 oiurts rendering 

will stand effec- 
. brought against a
• ;»•'.«• public and political 
, j'cr fducational cquali- 
p-st newspapers of most

, . v>r,  Uill U- searched in vain fur any significant effort 
during the last several sessions of their legislatures by the 
{wa.puncnts of the present lawsuits to enlist public support 
of greater equalization. Although it may be true that the 
narrow felt interests of taxpayers in the wealthier sub­
divisions is not aided by equalization, almost all social 
progress is the product of enlightened self-interest or what 
justice Holmes described as the limitations upon self- 
interest imposed by sympathy. Were this not the case, 
there would be no equalization programs at all, and, indeed, 
no public schools at all. But the designers of plaintiffs’ 
theory elect to abjure public persuasion. Rather here the 
tyranny of the syllogism is resorted to in order to carry the 
day on the belief that it is easier to persuade one man, or 
five, than to persuade thousands.*

DESTRUCTION OF THE FISCAL POWERS OF 
AMERICAN LEGISLATURES

The proposition tendered by plaintiffs is of course totally 
at variance with numerous prior cases including those cited 
in the Mclnnis opinion as well as those cited in Board of 
Education of Independent School District of Muskogee v. 
Oklahoma, 409 F.2d 665 (10th Cir. 1969). The Muskogee

* Indeed the Coons, Chine and Sugarman book, is not dedicated, 
in the manner of most polemical treatises, to a hopefully enlightened 
public but rather “To Nine Old Friends of the Children.”



18

case makes clear that “the use of taxes in the county where 
the tax property is located does not, of itself, constitute an 
invidious discrimination or unreasonable classification.” 
The Muskogee case refers to the leading Supreme Court 
cases relating to constitutional limits on state taxation. In 
Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 526 
(1959), the Supreme Court, rejecting equal protection chal­
lenges to state taxing systems, observed that states “have 
the attributes of sovereign powers in devising their fiscal 
systems to insure revenue and foster their local interests.” 
The cases are legion which reject any suggestion that there 
is a constitutional requirement of correlation between taxes 
and benefits, a constitutional prohibition against regressive 
taxation (such as the property tax, the sales tax, the value- 
added tax, or the total impact of state and local taxation 
generally), or a constitutional prohibition against regres­
sive benefit programs. (Public colleges, national parks, 
mortgage interest tax deductions, etc); yet an opposite 
postulate as to all three of these issues is at the root of 
Plaintiffs’ complaint here.

The decided cases clearly indicate that there are virtually 
no constitutional limits on the distribution of state benefits 
by legislation. In American Commuters Association v. 
Levitt, 279 F. Supp. 40, 47 (S.D. N.Y. 1967), the court 
observed:

“With respect to the challenged statutes conferring 
benefits, plaintiffs claim these statutes are unconstitu­
tional because there is no equivalence between the 
taxes plaintiffs pay and the benefits they receive. This 
claim does not present a substantial constitutional 
question warranting consideration by a three judge 
court. * * * The controlling question as stated by the 
Supreme Court with respect to the constitutionality of 
a tax is whether the taxing authority has given any­
thing for which it can ask a return. State of Wisconsin

i

i , ,  • 
u, i*' con- 

ru  n if. aS 
arv not 

(•j ( 'rsrmu'Itfict v -
V S 495. 521-25 

«,.n Salt Co. V. City 
' 10th Cir. 1949):

> ’ *
, i »• •.»«*"* ",r' lo>

;* r .  a * '*.*■ ;H 'c; V n ,

' y  ' l ’:  *' 7 . . 7 - 7  ’  icvT l Ul-’n »n the property
A \ , . MR-h M ilovs, the support of the

lor uvt. » , f()r health and
' ” i,‘,l7 "a!cr'works ami «hc like, the tax 

vanit.it"'". ' seldom does, bear a just rcla-

munity.’ ’

The principles invoked by the district court were era-

phatically affirmed by the Court 
Commuters Association v. Levitt, 405 •
19691. In that case the Second Circuit made 
■■special attention courts have always shown to taxt mat 
even when constitutional rights are involved. e.g.. Nelson u. 
City of New York. 352 U.S. 103 (1956).”

If plaintiffs attain their apparent desire, a fully-state- 
funded system, the lot of the state administrators will not 
be a happy one. For the sponsors of the plaintiffs sui 
have already made it clear that they consider that its prin­
ciples extend beyond barring “discriminations on the 
basis of district wealth and operate to bar discriminations 
in educational spending programs on any arbitrary basis, 
that is to say, any pattern of expenditure not resulting m 
per pupil equality. Thus Professor Coons has observed.



20

“ (Senator Mondale) So that if a school district found 
gold in the downtown area that permitted it to generate 
an additional $500 in the same tax effort for their school 
children, that would come within the Serrano decision; 
but, if they had an influential Congressman that dis­
tributed the gold out of the Federal Treasury, does it 
*ipply?

(Dr. Coons) I am not sure. It seems to me that the 
‘due process’ clause of the Fifth Amendment might 
require a level of rationality in Federal spending which 
would make such a policy questionable. It would be a 
very interesting constitutional problem.” * (Mondale 
Committee Hearings, pg. 6848).

What became of most federal public works programs on 
this theory, so inconsistent with our history and with gen­
erally understood limitations on the judicial function, is 
not explained by plaintiffs. For them, it is not sufficient 
that, as here, an elected representative legislature has ap­
portioned burdens and expenditures; the courts are to be 
invited to second-guess budgetary determinations and to 
invalidate “regressive” taxes and expenditures and “un­
fair” relationships of tax and expenditure as they did in 
Rodriguez.

The thesis of Rodriguez is that some unconstitutional 
unfairness inheres in the fact that the residents of “rich” 
districts are taxed less heavily, for more educational bene­
fits, than the residents of “poor” districts. But the case law 
is emphatic that the constitution imposes no requirement 
of a relationship between tax burdens and benefits. As

* Indeed, plaintiffs are driven inexorably to this conclusion. The
specious nature of the distinction which they would draw between 
Serrano and Mclnnis may be appreciated by considering their prob­
able attitude toward a statute providing for full state funding and 
going on to recite that the educational needs of the state required 
appropriating to the separate subdivisions in the precise unequal 
amounts spent under the total present system.

, . , . r s Court m
,rt \ . U* ‘ ! • . . .  .

, i *  4 'J
. . . scaMr doctrine,

- r j i r h . . i d » t i » . a n d

-  ; !r  u \ y r , ; t J . -  «».«>* — ui *usia‘ n a
\hr J * F ■c = )!,ri.j>r»Vi<>n made out of the

tV. ; ^ « !  »■ .«» ......... ......grt.- TA! f •»**' 5 • same act of legisla-

'■> » " « • 301 u s  
. ' " ‘ i n  s - 's  O  -M.Jtil.ro. Nothing is more 

6 ' . "  , ' th.n the imposition of a tax upon
1 « ■ »  intoy no direct benent

«» cx,.-n>l.tun.-. an.l who are not responsible tor
the condition to be remedied.

A tax is not an assessment of benefits. It is. as we 
have said, a means of distributing the burden of the 
tx,st of government. The only benefit to which the tax­
payer is constitutionally entitled is that derived from 
his enjoyment of the privileges of living in an organ­
ized society, established and safeguarded by the devo­
tion of taxes to public
Co v United States. 301 U.S. 308, ante, 112, 57 S. C . 
764 supra. Any other view would preclude the levy­
ing'of taxes except as they are used to compensate for 
the burden on those who pay them, and would involve 
the abandonment of the most fundamental principle 
of government -  that it exists primarily to provide 
for the common good. A corporation cannot object 
to the use of the taxes which it pays for the mainte­
nance of schools because it has no children. Thomas 
" Gay  169 U.S. 264. 290. 42 L. ed. 740, 746, 18 S. Ct. 340. 
This Court has repudiated the suggestion, whenever 
made, that the Constitution requires the benefits de­
rived from the expenditure of public moneys to be 
apportioned to the burdens of the taxpayer, or that 
he can resist the payment of the tax because it is not 
expended for purposes which are peculiarly beneficial 
to him. Cincinnati Soap Co. v. United States, supia, 
Carley & Hamilton v. Snook, supra (281 U.S. 72. 74



oo

L. cd. 703. 50 S. Ct. 294, 03 A.L.R. 194): Nashville. C &
St. L.R. Co. v. Wallace, 288 U.S. 249, 268, 77 L. cd. 730. 
738, 53 S. Ct. 345, 87 A.L.R. 1191. See Union Refrigera­
tor Transit Co. v. Kentuckxj, 199 U.S. 194, 203, 50 L. 
ed. 150, 153, 26 S. Ct. 36, 4 Ann. Cas. 493 (301 U.S. 
at 522, 523).”

Justice Cardozo further pointed out, citing numerous 
illustrations:

“Cigarette and tobacco taxes are earmarked, in some 
states, for school funds and education purposes 
Chain store taxes are sometimes earmarked for school 
funds * * * license and pari-mutuel taxes in states au­
thorizing horse racing are directed to fairs and agri­
cultural purposes, to highway funds, and to an old 
age pension fund in Washington * * * Unemployment 
relief, though financed in most states by special bond 
issues, has in some instances been financed by gaso­
line taxes * * * Similarly, special taxing districts for 
the maintenance of roads or public improvements 
within the district have been sustained, without proof 
of the nature or amount of special benefits (citing 
cases) 301 U.S. at 522-23 nn. 14, 15.

The havoc that will be wrought by the acceptance of 
the principles espoused by plaintiffs and the Serrano court 
is quite clear. The effect of acceptance of their claim 
would be to project the judiciary into a “second guess­
ing” of government fiscal determinations unparalleled m 
our history. Virtually all existing spending programs, 
for education and otherwise, will be opened to attack.

Thus, the Federal Impacted Aid Program will be open 
to constitutional attack by the principle announced by 
plaintiffs, who reject the rational basis test presently used 
to sustain the program. See Okaloosa Co. School Board 
v. Richardson, (N.D. Fla., Oct. 12, 1971).* Indeed, the

* 40L.W. 2238 (N.D. Fla., Oct. 12,1971).

ti ,

t

t 4

V ‘ * -
* V
* “
! v  r

.*rr# 
* *.

>« C 
l c t

• * r«c

r . M*. •+ * * 
C. \ 1C. ‘
■n 111

V 4-
( •

r*

. f.-.'-r'd hv*
 ̂ , J. to

) f.v. ,\r:.cmlment
.... e-rat jijH-iuling

1 would

’ V  \ ,rn  thr Federal Title I 
r ;, , r Uh tr.e.*%urcs. may not 

I'iu*f and Sutfarman. A  FirS 
, Vale U< vie%v of Law and Social

M » 11*72 >

, ill . . l t l ,. n u n s  ON TUB TAX s y s t e m

1 M  o( lhc R„dri.,..« rule may be to pro-

CVW y «•»«»» ‘°w“d o,her
T U' “ f xalion whether ol a regressive or progressive 
forms of tax is an unfashionable tax. but
character. unpopularity are not necessarily to its
,ho reasons tax.s high visibility is some-
discred • objectionable feature. But this
UT : u "  i m r r T“ es ought to be visible, not con- 
,s , .  .  .  gwhat’s more, although some homeowners 
CS™  not to connect clearly the property taxes they pay 

™ the services those taxes finance, there is a much 
T  rhnkage between costs and benefits than at the state 
" r a n e v e l . "  Cordtz. A  Word for the Property Tax.

Fortune, May 1972 pp. 105-06.
A shift away from the property tax would have other 

consequences. One of them would be to confer a windfall 
upon industries effectively exempt for one reason or 
other from corporate income taxation: .

“One aspect of the local property tax,, which is 
sometimes overlooked, is that it can, l >
up the loopholes in the federal income tax laws. Con-



2-1

sidcr coal. Coal royalties are accorded both capital 
eains treatment and depletion allowances. As a result 
of those two loopholes they are taxed on the federal 
level at a very very minimal level. Thus, the local 
property taxes is really the only tax in existence now 
which at least has the potential for getting at the fan­
tastic mineral wealth.” (Mondale Committee Hear­
ings pg. 6775) (Testimony of Ralph Nader).

In addition, most economists are agreed that the imputed 
annual value of owner occupied land is at least conceptu­
ally income though not taxed as such under federal and 
state income tax laws nor otherwise reached except by 
property taxation. See Marsh, The Taxation of Imputed 
Income. 58 Pol. Sci. Q. 514 (1943); Vickery, Agenda for 
Progressive Taxation, 18-26, 44-49 (1947), Simons, Per­
sonal Income Taxation Ch. V (1938). “The British in­
come tax and those of some other countries, include the 
rental value of owner-occupied homes in taxable income. 
Surrey and Warren, Federal Income Taxation 129 (1960

edition).
Still other economists point out virtues of the property 

tax in promoting transferability of land:
“Not only are the property tax's purported flaws 

exaggerated, but its virtues are too often slighted. 
Properly applied, it can help a free real estate market 
function in a way that maximizes the benefits to so­
ciety Economists generally agree that Pr°per y 
taxes encourage speculators to hold land off he market
for appreciation, since the cost of holdi g ,
insignificant compared with the potential gain . 
is evidence that this has already happened in the U.b. 
on an important scale. Between 1956 and 1966i accord­
ing to studies made by Alan D. Manvel for the National 
Commission on Urban Problems, land prices almost
doubled__rising from 270 billion to 520 billion. e
rate of increase l a s  almost 7 times that of the whole- 
sale commodity price index. Yet the nse m the value

* r ,A'
ft* !*
, !  is-A
•. ; \ 7 ' ‘ '
c.

1 1*

'*•. . A »

. , ,  . . .  r — *  in
, f .. aU ln"

‘  m mtra-
taxation

■ ;V-1 undcr-
. . r* . ; 'he costs of 

*» ,lr'.vrxi additional 
. , taxes on the

\'.l4 nthr'f..revs that al-
Thr fantastic price

untru-». where property 
ib.e potential danger.

at
, tax are not to be lightly

v . r t he \ • * • value and fair-
clĉ j j r t  Crrtainly the ^  dccisions properly
r,-\ er lack of it of the prop*. . * the present
committed to state and local Wgts c> me*• ^

1 # “  ronSl,\ r e 4 t a  in the United sTates. The prac- 
! trCof°adoption of the Rodriguez rule may be to

, he state” either to abandon the property tax for 
rT r,e„„  or to provide for its state collection and assess- 
education or to p ,  ^ — mic proportions and
men., an administrative t a s k ° f i n  <he many
one scarcely P'ac' “-“ e 1 assessment agencies or
states which do not have s t a ^ ^  ^  ^  ^  do

not denyThese consequences, they acknowledge and seek

t o ' ' " V i s i o n  does not
but it requires tha i generated by it must be
distribution o the mcom ^  done less the
reformed. coUected is als0 reformed.
manner in which th at 6867) (Testimony
(Mondale Committee Hearings at oooi
of Sarah Carey).

xirViv the property tax should be re- TViore is no reason why tne piop j . ,
quired to'be a state tax or why the taxing authority should



26

be required in Hie . ds rather than merely
ordinate assessments by .sing that thc react,,.,,
dozens of assessorSt U is n (o the recent court
of academic students P , s than enthusiastic, 
cases ha? been some i ^  the pattern of taxa-

Moreover, in many s t a t e s  operate to the detri­
tion away from property ^  .g this so in those
ment of poorer far^ ie^  adopted high income taxes, 
states which already NeW York, to give three
such as Maryland, Wiseonsta m i o ^ .  ^  .ndustry 
examples. By reason o f ^  iei£rom significantly 
these states are effectively P in the absence of
further increasing their m^ i hboring states. They will be
corresponding ^roperty taxes or to resort to
driven either to reso economists agree are more
state sales taxes w i taX Some indication of the
regressive than the P™1̂ ^  are likely to make if PrJ  
choices which vano raising a large quantity of addi-
sented with the nee funding of education may be
tional revenues for :̂  f^ f  tables at pages 307-08 
gleaned from examination of Factors Affectl» 9
and 317-18 in Johns ted ’ Qn&l Educational Finance 
the Financing of Educa 10 ’ reveai that as of their dates, 
Project Volume II. These % sales tax rate and m-
Wisconsin, by adopting the no^  ' might derive an
eluding consumer service at ‘  ^  whereas that
additional $88 million m sales ^  ^  Mgh Oregon

State Ct ? r t s n°sfn” egn  already has •

H°wouW have gained only ?98 su T e T w a ry la n d

" r g ^ s — - - m raisingitssales

» *

<■

;* *• 1 , v> «t;wcrn
' ‘ * -c-.\ U> ralSC

• ,-cr with. ... >.i-*T‘CV
, -

jv<t confined
• ! •. v;duc added

.. • * < 
* \ <■*»

» » c
,  * ■ *

: t tt a
>**»r . t'. us t

\0 . 18"
char,r>* V*

ip * r and the w
i

Tt»> UVVle

orKU'b 5
and Wrongly-,V >„> » -•» »*

*.v rn t f * '  ,rf
V S 1' u,-2.page U A '

K qvin January 24. 1J ‘ propcrty taxes
lU\tmvr* - ^  arsons badly hur 5 * ily be helped m

h;,!a ,  older people who couldi ^  next year
particularly President 1 hoiu a gen-
- - Ul̂ o  substituting cor state property
the promise o
oral sales tax.” ) m assed  that there is

„  is clear from the authorities or the benefit
11 „ that either on the ta Rodriguez will

n0d eT sh «t to a formula 'children. In many
b e n e f i t  - ‘ nation as —  the
jurisdictions, lo more regresswe sa taxation.
result may be a sn upon proper y



28

vigorously disputed and the writers on public finance 
have been quick to point out that:

“Any reduction in [property] tax rates would confer 
windfalls according to ownership —  and property 
ownership is more concentrated than that of income. 
Who actually bears the burden of property taxation?

* Neither the theoretical analysis nor the empirical evi­
dence is as clear as we should like. A part of the tax 
on commercial, utility, industrial and housing struc­
tures can be assumed to fall on consumers more or 
less in proportion to spending. This part then has 
some of the regressive element which is often cited 
in condemning the tax. But despite frequent implied 
assertions to the contrary, a part probably remains on 
suppliers of capital; this will be more progressive than 
proportional (and not regressive). The considerable 
portion which falls on land, much of which was capi­
talized in the past, is hard to place in a meaningful 
sense__except to say that past and present land own­
ers are generally ‘not poor'. The distribution of this 
burden will be decidedly more progressive than re­
gressive. In short, although families with ‘low’ in­
comes or consumption do bear property tax, persons 
who own, directly and indirectly, ‘large’ amounts of 
property must carry burdens which are ‘heavy’. G. 
Lowell Harriss [Professor of Economics at Columbia 
University I. Issues and Interpretations, 155 The Bank­
ers Magazine No. 2 (1972).

EFFECTIVE COMPULSION OF FULL STATE 
FUNDING

The Rodriguez decision at bottom is an effort to consti­
tutionally impose a regime of full state funding of educa­
tion upon the 49 American states that have historically 
rejected such a system and upon the state of Hawaii m 
which increasing dissatisfaction with its results has been 
manifested in recent years. It is true that for the moment 
proponents of the Rodriguez rule have urged that there 
are other methods of educational finance than full state

, t ..,\ -•* i * pr'ffxwal
, , *•-* s i V-.c. >*  *4 . . • ' f

... v •........... * v ' ' . <rr . . Civil Eights.
i ■ vol. 6.

‘ ' _ #* '7 a * . * . , alternatives
-• • '*•’ tljv train only"

' - c * ’ * *• "  ̂  ̂ \hr writings of pro-
r- .*•-«-» . - • Thu>. in describing the
P —  f ‘ !r  , rr' v; ’ Jlv even the lawyers’ Com-
p - -r uvr ' * 1 '•  ̂ x\t-m * * * he limited to an
” ■ '""*  '  *'**“* . n areas** or be likewise

lr.lurala.nal experiences -  
Id a . t l  n requires only a slight 

w»b 'be keneri.1 view «» » «»«  education au-
voucher plans to realise that they 

„u ,r„ "w  with ^  cour, imposed adoption of a
are scant !> .  ^ example, the National Educa-

T n n a n c e  Project in its extended volume on "Alter- 
nativl Programs for Financing Education" .National Edu­
cation Financing Project No, 51 dismisses the possible 
of voucher plans in one footnote:

"This so-called 'voucher plan* was not consider d 
because its constitutionality
Furthermore if the law prohibited the redeeming 01
fhe Buchers by parochial schools " ^ ‘1̂  
schools which enrolled a lower percent of blacks man

the percent of ^ ^ ^ p ^ t e ^ c h o o l ' w a s  located,
bc°fctv advocates of the voucher

plan." Id. at 350 note 3.

The so-called power-equalizing option pursuant to which 
districts would be permitted to supplement the uniform 
state allocation by levying additional local taxes provided 
that the wealthier districts levying such taxes turned over 
a large portion of the proceeds for statewide use similar y



?0

is not regard^ as a viable alternative to full si.tr  
bv anvone. Even its chief and only sponsor. 1 role- 
Coons has indicated that it is designed for eonsump.a r. 
only by judges and not by educators or legislators:

“Of course, there are certain problems inherent in 
• hat [power equalizing proposal!, not the least of them 
the pohtical problem of recapture from the local dis­
trict I am informed by people who know these things 
that it £  politically difficult to establish a: systemi n

Committee Hearings, page 6882.)

In the event that any state should be so foolhardj' and 
intrepid after adoption of the Rodriguez rule as to adopt 
a power-equalizing rule as distinct from full state funding, 
the proponents of judicial intervention in these matters 
have already made clear what is in store for it Thus, 
Professor Wise, the founder of the new cult, reads the Cali­
fornia decision os prohibiting not merely existing systems 
of school finance but the Coons power-equalizing proposa

a' S0' “This analysis is consistent with the more equali- 

tarian wealth V r how

i ! a a s i g i

bors"* * * ” Wise, The California Doctrine, Saturday 
Review, November 20, 1971, 78 at 82.

Professor Karst has analyzed the California decision as 
to effect rejecting the power equalizing option, pointing

4fgt *

*

.. .....*
------------- "  ^  . .  »* ‘ • *•*

** --*•* * ...................................  '*  ‘, 1 .» » . V  ' *. .

, lul,b .b .l.h  NWhrl 
. -» ,*<-•< t. '  pa*b.cm» <•! ^..................* I A,* .* •’ * •4 » * * , , |.,„r Through Ih»

r .,,n IO. rrotrr.ir.g „  -  M SI He is
: , - v r 2 - t  «  ‘ ‘ r ^  en ^ en n d H n , all the stale s

ex^d i'.u res * « ,  ^ « . - *

president s Commission -  ’T n  X

iributed hs denunci extremely difficult to establish
grounds that ‘ it wo rates that would enable the
an upper limit on ^  r t ^  ^  requirements. While the
state to plan its e eliminate disparities based on
power equalizing vast differences
wealth, d would n . ts and therefore among
in ^ ndin§ r ? t l *  President, Commission on School
chiidren ^ the f  ̂  and Money (1972) at 33.* The
Finance, Scf o o l s V  Fleischmann Commission in

N 1 v°York State likewise rejected power equalizing.

“W e prefer full ^ ^ ^ o n f S l r s c t s ^ e T h a t  
equalizing for sev^ a. habited by wealthy residents 
wealthy districts a u âted by the poor. All dis­
and poor districts ar P P assure equity in
trict power equalizing does then

* See also- Berke and Callahan, Set rano criticizing power
Millstone, 21 J. P ublic L aw  2d at o~ V 
equalizing as unfair to urban areas.



32

tax rates vis-a-vis school expenditures. Poor j >  
would have difficulty in meeting the competition •! 
rich people in rich districts, once the latter saw ho* 
the finance plan was shaping up and raised their school 
tax rates to preserve their favored position.

Second, assume (as we dol that there is no absolute 
standard of education which can be described as ade­
quate’ —  that all educational disparities are relative. 
Then, if one is going to embark on a major revision of 
educational finance arrangements, why should one not 
remove ‘place’ inequalities as well as wealth inequali­
ties? The quality of a child’s education should, in our 
view, be no more a function of how highly his neigh­
bors value education than how wealthy they are.

Moreover, we believe that the equal protection clause 
of the 14th Amendment applies to individual children 
rather than school districts. If this is so, then the 
quality of a child’s education cannot depend any more 
on the vote of his neighbors within the confines of a 
local school district than it can on their aggregate rela­
tive wealth vis-a-vis other school districts within the 
state. The California Supreme Court in Serrano v. 
Priest was not explicit on this point, but it did take 
some pains to argue that territorial uniformity in school 
finance is constitutionally required. ‘Where funda­
mental rights or suspect classifications are at stake,’ 
the Court said, ‘a state’s general freedom to discrimi­
nate on a geographical basis will be significantly cur­
tailed by the equal protection clause.’

To make the point clear, consider two districts, A  
and B, and let them be of equal wealth. Suppose the 
residents of district A choose a school program half as 
costly as the residents of district B. Is it good policy 
for the state to require the children of A to suffer the 
lifetime handicap of inferior education, which is to 
say, should the state exclude these children from the 
benefits of district B education on the basis of a dis­
trict boundary line that is itself a historical accident? 
As we understand the ideals of a democracy, public

*•* • v,< ' ; ;  Z X T Z  ‘ f *- I * » ;*• H **-' , / .1 I'.i'.c
, ,  Vj I «- k ? ■'* * -  * *'• * * . _ f ..a’. tt-> -urv*-%«  ̂ , rj *»»r jii , • 4 j * *

• K . . .  __ ... .  ii,r tunc, ana. .if i.bihlV and aptitude »>cvnr* an me a...
S U  often act'as a major transmitter of the p w »

. jf primary schooling of some children is o %a- >
iter quality than that of other children, the sorting 

h : ineffective and dangerous. Local tastes for
basic educational services should not distort the func­
tion of the sorting mechanism and possibly undermi 
students’ potential and achievements” (Report of the 
, 7 York State Commission on Quality, Costs, and

o f  Elementary and Secondary Educat.on at
2.45 and 2.46.

Lest the critics of power equalizing have overlooked 
some of the considerations which would be urged against it 
in future litigation, Professor Coons himself has supplie 
some further suggestions:

“The first group notes that tax-sensitive voters may 
tend to cluster (eg., older persons with fixed incomes 
and no children). These critics would prefer the se­
curity of a state mandated uniformity of spending 
which as they view it, would be more education- 
oriented and less arbitrary. * * * The second group 
of critics raises a more technical objection to local 
choice. They doubt whether it is possible to establish 
fiscal neutrality or know when it, exists. Realistical > 
there are many subtle forms of ‘wealth’ differencein 
addition to differences in the value of taxable proper J  
per pupil; to equalize assessed valuation per pupil does 
not necessarily equalize fiscal capacity. If in a decen-



.M

. •, . ..I i r! • •• , <1 t~. »-jtrall.n-d |*"' «r 4 <•■■■• „, , ... i f,,r c\,im ■ j»:*5 „ i>in six tiding exist u. .
|,i..|u-r m disirir'.s wish higher l*™ ;"..! v  ' ~
would an objective obs.-rvcr
weallh, or some other ■‘t " ’r 1S^ ; |  j s ,.rrnno. 1 

11971)-

Thcse quotations should bo sufficient to make clear that
what is at issue in this case is whether this court is going to

non the states full state funding as a matter of con- 
Z u o n a  “ ompuision. Notwithstanding the protestations 
about the alleged a v a ila b ility  —  sys«m s and £ £

funding upon every Americantuna p viable and are not in-
remaining open to the states arc
tended to be so.

Against this background the appropriate disposition of
th^ case is apparent in light of what all nine members of
this court have recently stated in respect to the importance

of local control of school systems.

■•A more weighty — 'o f £ 2 °  is its lack of formal control overtlK  sc  ̂ J ,  ,
under the terms of its contract edu-
Direct control over c i n  our
cation o f^ o M C h .y s  a n  ^  of of Emporia.

4°0 L W- 4807, 481? (Opinion of Stewart, Douglas.
•Rinnan White and Marshall, J.J-).

Z e d  control is not only vital to continued public 
support of the schools, but it is of overriding ™ P  
ance from an educational standpoint as w ell 
U Council of City of Emporia 40 L.W a t ^  o t p 
of Burger, Blackmun, Powell and Rehnquist,

■ ......................  *  • • •• 4 *

14' * . , . , . * 4.r *
,* * * -* ; f . ’ . • r * 9 * * * *' • * 1♦ . « «< • 4 » , , . . . r in * s-5 5* ♦

... •. . v - -
„-.t „ i 1 'hr P * h V.KV. *»<■

sir l ; r” ^ v  teach ami h->w much th<-V ate p»»d
* " v ' f l u  arc built nnd buses run are facets of
, ‘ *-rc S4b - l s  arc r (){ ^^rd s to tax. incur
d.xtr.ct P ’^'l-rud ts for distributing local and state 
debt. make In dk nel and services. Into-

b ' b Z ^ h S c d  for the same strong 

room.
i m p a i r m e n t  o f  l o c a l  c o n t r o l

There are profound ‘ ^ " ^ n e T d t  ' L r ,  
public schools in the resul*sought. ^
citizens’ support for b°e eliminated,
port for loca f schooi superintendents in
The need for mvolveme desires of its citi-
the politics of the community The of
zens will be in large measure el ^  d' eli^ nated.*

« -  P - r 1 Z X - " o <  t h Z Z o Z s t e m  and of
The implications fo . , , virtually all the com-
the curriculum are recognized by and immedi.
mentators on this subject. The mosl oo

turns hv the Maryland St. ‘ nre-emptive state assumption of
U.Bi>l»tion providing for » “ > » t  ^  77, | 130 A (g).
school construction costs in that stale.



36

ate shift is a shift in the responsibility for labor r«. 
gotiations with teachers’ unions, which will naturally b? 
directed at the level of government which provides the 
revenue —  the state government under the mode of edu­
cational finance favored by plaintiffs. There are longer 
term shifts also. Acceptance of the principle contended 
for presages a shift in control from the district and county 
to the state and perhaps ultimately to the nation. The 
extent to which such a shift is desirable and the degree 
to which it is desirable raise questions of the highest 
political moment, which under a democratic system of 
government cannot be placed beyond legislative and popu­
lar control. The implications have been spelled out by 
Professor James Coleman:

“There are two very different conceptions of the 
relation of schools to the social order. One conception 
is that of schools as agents for the transmission of 
knowledge, culture and social norms of and thus as 
agents for the maintenance of the social order. The 
other conception is that of schools as crucial institu­
tions of social change. Schools have performed both 
of these functions in the past and will continue to do 
so in the future. But the relative emphasis of the two 
functions has been different at different times and 
places and what is of interest to us here is different 
for local authorities and national organizations includ­
ing national governments. As the discussion of dif­
ferential opportunity indicated, local authorities ordi­
narily have more interest in stability and use of the 
school as a means of maintaining a social order than 
do national governments.

Thus, again on the issue of social change, national 
governments are more often on one side, the side of 
change, and local authorities are more often on the 
other, the side of stability. The basic interests in­
volved have been discussed in earlier sections; but 
the content of these issues of change vs. stability goes 
beyond the questions discussed earlier. Examples will

** «*

if V * ■

t • Vi >
.1 »'
* ,U-c i ? *•-! 

»!\ UI»>!
*rak
the \

♦x* it.r. r the
T h e UM*

{ ^ .r d m g  M-h.K.1%. thr d-v,.', ; ..! n*l«unali.%t»c
N.-u'.h groups in the schools, the introduction n.i- 
• •oiiahstic propaganda into the curriculum, the indoc­
trination of teachers and the purging of teachers are 
methods that these regimes have used to achieve, in 
a single generation, radical social change. Such at­
tempts at change meet with increasing resistance at 
lower levels of social organization, all the way down 
to the family. What is true in totalitarian regimes is 
true to a lesser degree, in democratic ones: The na­
tional government is more likely to see the schools as 
instruments of social change than is the local govern­
ment The local-national conflicts concerning school 
integration in the United States illustrate this well, 
because the national government, pressed by organi­
zations at the national level, attempts to use the 
schools to create racial integration which is absent in 
other aspects of life and thus to bring about a major 
transformation of the social structure. What is evi­
dent in this type of conflict is, in a sense, the self- 
preservation interests of two social units, the nation 
and the community.” Coleman, The Struggle for Con­
trol of Education, in Bowers (Editor), Education and 
Social Policy: Local Control of Education, 64, at 77-78

In addition to these broader consequences which may 
flow from increased centralization of control, there are 
more immediate reasons for questioning centralization. 
Thus, the former Commissioner of Education, Harold



38

Howe, though sympathetic to the California decision, t 
commenting upon it has written:

“Teachers’ organizations have opposed decentra'.*. 
zation of city schools because of the potential loss la 
leverage in dealing with multiple education authori­
ties over a variety of issues, and they may welcome 
centralization of fiscal authority at the state level for 
corresponding reasons . . . Finally, the California 
decision raises questions of diversity and control. It 
is an axiom of American politics that control and 
power follow money. As schools finance is monopo­
lized by the state, what would states be likely to do 
that they are not doing now in controlling the educa­
tion options of school boards? They might move to 
complete standardization of education, decreeing what 
is to be studied, for how long, and in what manner, 
thereby adding to the already extensive requirements 
for teacher certification and similar matters. While 
there are abuses in any system, I believe strongly that 
we need less, rather than more, participation by the 
state in the day to day affairs of the schools.”

Howe, Anatomy of a Revolution, Saturday Review, Nov. 
20, 1971, 84, 88. Thus, too, Professor James Coleman, 
perhaps the leading authority on these matters, is led by 
concern for diversity and local control to advocacy of a 
voucher system with public control limited to control 
over ethnic and social class composition of student bodies. 
See Coleman, Preface to Coons, et al„ supra; Coleman, The 
Struggle for Control of the Schools, in Bowers (ed.) Educa­
tion and Social Policy: Local Control of Education (1970); 
and the essay by Coleman in Harvard Education Review, 
Equal Educational Opportunity (1969).

Dr. James Conant, though a recent convert to the de­
sirability of full state funding, pertinently observed some 
years ago:

“Four generalizations are possible about the financ­
ing of our public schools. First, in every state the

«. ►

» „ .  ̂- ■. • s* ‘ » »*
, , . * • > *• '••••* ‘ r • ,

’ I' " • 1 *• ' *. 9 . . •*» V- ■ ' C »••*•**'  .» >' ,T ' ’ rf . : >  ' ’  ' , , V * r«
, - •}•*• noM • t  * f-f"  * '
. .  ’V.hr red n'.V.r to-f- ! r i • A >•=»' by in
't ' " \  loudly inadequate 1 h«-re »  no onr
■v -t'h-.clv satisfactory scheme K<*r the state to ta^e 
,ver entirely the financing of each school district would 
K- of course, to move far in the direction of a system 

state schools. Unless a local community, through its 
school board, has some control over the purse, there 
can be little real feeling in the community that schools 
are in fact local schools. I have heard the opinion ex­
pressed by those who have devoted much study to the 
matter that something like 507c of the current expendi­
tures should be raised through local taxes if local con­
trol is to predominate” . (Emphasis added).

Conant, The Child. The Parent, and The State (19o9)
at 26.

In discussing Federal equalization aid, Conant recog­
nized that any large scale program of equalization assist­
ance would result in a large and increasing measure of 
Federal control, an insight which applies equally at the 
state level. Conant observed:

“To imagine that recurring appropriations of this 
magnitude can be made without careful budgeting on 
the part of the Administration seems to me to be the 
equivalent of imagining completely irresponsible gov­
ernment. Careful budgeting will mean, m turn, a 
strong Executive Agency which must have access to 
a mass of factual information about the educational 
situation in every state. The agency responsible for 
submitting the annual estimate to the Bureau of the



•10

Budget and then supporting the proposals bcm.rr < - .  
gross will have no easy task. Proponents a «V 
grant and various equalization formulas will have V, 
argue their eases from time to time, if not each year 
The Education Committees of the House and Senate 
will have every reason to examine into details of cur-
Hcula and school organization much aS C o m m a s

. of the State legislatures now do from time t 
Certainly a new chapter in American public educa

powerful Federal influence added to the Present 
fluence of the central authority in each state. (Cona ,
supra, at 55-56).

The fact that increased state financing inevitably mean* 
increased state control has long been recognized by ^  - 
dents of state-local tax structures. As early as 193 
noted in Hutchinson. State-Administered Locally-Share

Taxes (1931) that: ,
“This study of state-administered locally-shared 

taxes indicates, however, that state administration of
: tbp orst step towards state control of thetaxation is the first Ŝ P  taxes The state is in.

functions supported by unctions by minimum
creasing its control of local ^ t i o n s  oy ^  ^
requirements. In the case o r Highway Com-
the road be built to satisfy the State Hign^ ^  ^
mission. Minimum educa the length of the school 
of teachers per stude t ^  ^  amount of revenue 
year are often presen • . tions placed on the
return grows larger and rieor ” (at page 21).
localities increase in number and ngo . P

The Hutchinson study recognizes the extent to which 
state control usually follows state subventions. Hutch

t__ Sidney Webb’s history of grants in aid in E g 
L T w e b h  c Z « i n Aid: A Criticism end .  Propose!
(1920) (at p. 6) (Hutchinson at 122).

.* • «« »

, n -> * *
,, ,, V r ! % n

. , . a,irqnixtrrrcl t-axcx re-
tSu.dly. however, t w -  fn,m lhe locality,

pl.-we some source »>( tax. U) morc and more
Further. the method U-n * lionmcnt of the rev- 
state supervision, trot -g ‘ ^  o{ need and through
onue according to the sta - -mdards for the func-
thc establishment of mini lt is a movement to
tion of which the money is g numbcr o{ taxes so
bc watched, and studw d.^ ^  .ncreasing The state
administered and . ing its assistance, but with
sees the local need and1S' f _ * This particular type
this assistance goes mterfc stioned^ y believers in 
„f state interteence w ^  rigid legislative tn-

S e r e n c e  r a t e  “ban flexible administrattve control.

(at 131-32).
Further, because of vartatiGns^iUocal^ee^, ^  d&y

not be able, absent detai e m ^  ^  enf0rce any

0T t r e Sq u M itT e tn ythrsimplest. Thus, former Com­
mie of equality ^  pointed QUt;

”  —  costs v ^ y  —

S  t h t  "
a major component in any y Janitorial serv-
^ S S , S ^ a n d  the like vary



42

from place to place. Vocational education. W  e.-., ,.r 
the Inch cost of equipment, and the teach,n* of hunt.

i ui rnn 'ire exceptionally expensive. Sjx.^
S  « a c « y  the same amount on each child in a state 
therefore.tloes not provide equality of servtces.

Ho. , ,  supra at 86. Any rule of equality, whether relating
to w r pupil expenditures, school facilities, or allocation 
to per pup F , dtate school systems into
of taxing resources, would force s
a Procrustean bed.

It is of course, not self-evident that in an age of in-

the American system of local financing in education is in 
effect a substitute for the English and European systems. 

-The educational systems of Europe have 
a„y exhibited
school systems. y schools terminating

SCh? °  for t L  ma es Another outcome of these forces 
has-been £  — nal s“ f
supported schools were ^ Us the
‘voluntary or privately PP „nUid satisfy both its
family with some financia m e m through taxes,
aims by supporting the s . sending its own 
providing one level of education and send g ^
children to private s c h o o l s n e v e r  
for them. In the United S ta t^  a ^  ^  ^  ^  of 
developed within public &d It wouid appear,
private schools been ^  {orces> the desire of fami-
then, that the seco own children the best educa­
tes to provide fo wholly submerged by
tion they can afford, has been ^  children, or

the goal of ^ UCa“ °nnim R e n te d  wholly through ac- 
a ch i^ e ^ ls  lattor

S Z te m e a n T h a s  arisen whereby persons with flnan-

• f  ̂w; .i . . .  «* . , *U.. . .  .̂« f -  v - - - * l * 1 '
» r* * * * t In

t  1
^ ‘ n K r l ‘ * 7  V  . . n , { .hll pf .rvtip> f

O bviously , the a , pm  •• w ith  »n-
arca* " l  consumption would »*»■ ,m o( ,n-

c * ~
Preface to Coons at XIV

Professor "  2  "

>» a school.
component of that experience is the class bacxg 
*Vir> other students'.

Vimader sense of the terms 

‘equality of'educattonal ^ f ^ ^ U v e  r e s o r t  in*
p S  — one.  This

equality can on y , t d clearly consists of a
" ^ ^ ^ " y ^ n a n e i a i o n e s .

this has wide implications is ^ ’̂ Ĉ nV̂ °7 l948)t at 28-29.
point of Simons, Economic o icyij individuals or families must

"A  society based on free reapMS.ble mdn jdt resp0„ si.
involve extensive ng 1 s 1 1 • r ^ cjr freedom, like the
bilities of families are an essential w  moral devel-
itiseparahle moral responsi n i ‘ . t i sense 0f the primary
opmem. P » %  W J *  chicks on
»  “  «  i-crea se^ son a , « £ *  hom

arava •» *» ̂  ̂ ro-
duction.”

, ■ * *V* «*'-*



44

The question about the state’s provision of equal edu­
cation opportunity becomes a difficult one: over which 
of these resources does the state have control, or 
should the state have control? Which of the resources 
can the state, through legal means, demand be redis­
tributed equally? Certainly not the attentive help 
which some parents give their children in learning to 

t read, nor the discipline some parents exert in enforc­
ing the homework assignments of the school, nor the 
reinforcements by parents of the performance rewards 
given by the school. . . .  In this second area of re­
sources (the state) has been even more ineffective 
than in its attempt to redistribute financial resources. 
This second kind of educational resource, in the form 
of other children in a school, Coons and his colleagues 
do not discuss. Yet the attempt of the state to effect 
a redistribution focuses on the attention of the fact 
that financial resources are not the only ones. More 
fundamentally, it raises the question of just how far 
the state can go, and how far it should go, in redistrib­
uting educational resources to provide equal protection 
to the young in the form of equal educational oppor­
tunity.” Coleman, Preface to Coons at XV-XVI.

In light of this, it should be entirely clear that this case 
at bottom involves questions not merely of educational 
finance but of political theory: of whether the state is to be 
viewed as an organic unity, and its citizens merely as com­
ponents of an organic whole, a view common to most totali­
tarian systems and one consistent with the thesis that the 
state is fully responsible for all differences among its citi­
zens, or whether rather the authority of the state is to be 
viewed as resting upon some form of social contract and is 
hence limited in its operation upon individual differences 
to those powers conferred and stemming from actions taken 
by elected constitutional conventions and legislatures.

It need scarcely be labored that the removal of fiscal 
controls to the state level has consequences for the survival

i iMlii

45

f local government. It has not hitherto, in this country, 
thought unconstitutional for taxes raised by a given 

government to be spent without reduction by the s c ^ o  
Excise tax on educational expenditures which plaintiffs 
would have this court impose on “wealthy” distnc s. or, 
under modern concepts of government, is it unconsti - 
tional for one level of government to delegate powers 
another, even though the result of a delegation would be 
to produce distinctions between the actions taken by de 
gates which the delegating government itself would be 
powerless to adopt.* •• The whole purpose of delegation of 
power is to allow the delegates to do what the delega ^  
power could not do. It does not follow from the fact that 
the state has arguably created its municipal corporations, 
that absent racial gerrymandering of other racial discrim 
nation it is chargeable with the consequences of their 
differing actions, as the plaintiffs would have it.

* T h e examples are legion. The delegations to states « ndertJ en lilt example: . b , McCarran-Ferguson Act. the Miller-
'? ’■ W ? a S  The Wehh-Kenyon Act. and the federal estate tax credit

strmding  ̂thaf‘coi^^ss* vcoukl
portionment clause from chrecth imposing from specifying in a 
different rates in different states or (perhaps)
o-m- that "fair trade" agreements were legal m Kansas and U ega 
m Missouri. Similarlv. the conferral of home rule powers on loca 
■ “ divisions has not been thought unconstitutional because the: local 
< -iikiI of one subdivision enacted a regulatory ordu.ance Much the
•• ’ Council of an indistinguishable subdivision decl.ned> to enact 

it been thought that the resulting •discrimination pres .
' '< in of eiiual protection of the laws. • .

M.Ireland and in most Southern states where county districts 
vplace. nearly all the counties pre-existed the state and * e  

• • of towns in Xew England. See Liggett Co v. ->
«P».bt) i Cardozo, |. dissenting) and authorities there 

obool awl taxing districts characteristic of the 
o v A,.,, likewise only in form of state origin and m 

• •<- ..m of the characteristics of voluntary ayy'-
< • ■•riniui! Limitations 1-d (31 cd. 1>/1) :

Kv. r : l V, IS* >7



47

46

It has been pointedly observed that ‘ wffl maUe

‘•One purpose f°r “ “ ^subject themselves to
sacrifices, for wl“lch ^  schools for their children, 
heavy taxes is to pay f more education if

" S  o? aatieToCth“ r own children! Some may,

be reluctant to shoulde , ewhere Over the years,
or national taxes f o r ^ ^ ' J ^ S a t i o n  .11 of pros- 
I suspect, a sigmfica mont obligations, can have

positive^results' as ^ a r V  taxes designed to finance ,

welfare of children. tkose witb the best of good

^ n to n T  are" Compelled to curb the desire to

BT ‘foundation, - e l  of s c W  s p e ^ n g  g u a ra n ty

for. Iffreeto d o so  somecommum ^  this

general average. b°tter schooling do ex
focal freedom. The excess. People
tend beyond the area ^  ^  ^  less real than the 
move. Positive sp convincingly as a rea-

2 t , S r ‘ wide area t0 pay for a lrism
level of schooling for. alJ‘ „ nDDer middle income group

Many an American in PP ^  ghe can pay still
is troubled by present taxe . illin«iy , Americans
more. In many cases m o r e t o  pay 
will reduce personal c mQre likely to do so. I
more to government T h y  chiidrCn to benefit,
suggest, the more they expee* th ^  argue that

Some groups supporting the ^  say. $2 nv;re

-  ^ 1 ^  ^ -

have to pay $2 imove^ Xfat^ ^ o v T w o u ld  it affect in­
state. Does this seem fairaiist_c ^  old.{ashioned to
centives? Is one to , make a difference and
believe that effort :in? J  ^Mpecte of rewards? What 
are not unaffected by th P P .Qn -n which the people 
would be unfortunate 1 . who must be willing
who can pay for better edu • too much
to support heavier taxes, wd  ̂oppose

of additional — ^ n a n  fn education, a local 
For the best resu tei^fi ^  seems consistent

element may nee Harriss, sup™,
with the new court decision .

"  *  — " r = n ° e v e u

f
S i r — ' "
t0 prefer 1 - ^ ^ ^  their residents in plaintiffs' 

t S Z Z 'I T .iate funding is sought to be secured by a

process of blackmail. seH4nterest of the
“A primary factor tot b near the median

bulk of school dis n  . benefits from successful
in wealth. They can expect benefits ^ uccess{ul re­
reform; xvh a tth eyc. P the staUnch ally of
form is trouble. This max ^  ^  .g pr0.
the court. What such douut in which aid formu-
lonqed period of turmoil a validity of bonds, and
las"validity of tax " “S  ’truggle. The
retroactivity remain loc d^ n.wealth districts lies
self-interest of these! near- ed to accept any
in certainty, and they uiU be p P jt -  Coons.renscmable legislative package that prod t  n 8 .

.,j •> Yale Review of Law and Social acuo

«• I

s is sought to be imposed in the face of the 
by the architects of plaintiffs theor>.

_______________



48

“Of all public functions, cducatu n m »•' . . *  
methods is least u n d erstood  and most in rao<i , l -   ̂
variety experimentation. and indepcndimi *
ct al.,2  Yale lie view of Law and Social Action at 11.

e n f o r c e d  m e d io c r it y  a n d  HI.DI CTION OF
* PUBLIC SPENDING ON EDICA1IO.

Virtually all commentators on these problems agree that

S S k k s k s

“nd ^ “The S T -  S S S u S e 6 S w e t n ‘two f S t "

opportunity for  ̂all ch Id it can afford for
family to provide the^bes^ea ^  to be

d ip te d ^ h e y  both lead to investment by the older 
generation in the younger.

The experience of the two fEnding is not such
have adopted a system o statewide uniformity and
as to encourage a belie consistent.

n !  t h " r C o - " o n aon tutor Gov­
ernmental Relations ^nducted^a^conference^on^ sta e ^

nancing of public sc oo • afmberg of the University
dressed by Professor P. J. H' of curriculum

of New Br^ Ŝ 1Cb7provindal Department of Education
to m " 1962 to 1969. during the period o£ the implement-

. ... * ........  “ * ' -. »
.. -  - ................ ‘ *"• a-.1- «*"

' ‘ .....  '  ...........  i 1 -  ‘ t'.V .TU f
. * ' ",, »nc«* 4,n. • i t ' •* » i

T = ;  , .v . -u u t ' ®!U*
. . .  < 1- • i • • . • 1 Jar inuii I'

■ !. -* *• 15 curriculum
• y ' . - ' - - '  * ' , .,,-iuiutv »>n cur­ie , t .. . * I • iwl t )pi» '■ ,u‘ • . ve_
n 1 ? *• r c' . f .ti.r . down than a ‘•'c't . j r. . .. , r  •» ir\cUl‘<8 **

. < c " m Krivutum . .
nine up .uin Mr Malmberg said

liter, in answer t« » ^ ^ ^ U n g  up -  better 
. • Vic felt there hail ix^n - the rural and
teachers, buildings and program^ ^  w o  or three 
tv Hirer urban districts dun R j lhink we are be-
>■«”  ”f u!c dvna'm.c' and there is going to be a

,that when school 
* * * ‘It is no secret dcnce in 1967 they felt

boards lost their feed^n^ nhaod, for this independ- 
that they had lost represented local control
ence to most sc b °°i^  si |icant decision making 
of education. The ®  co^trof Gf raising money and 
function that they , it fn education. It is my
determining how to sp more difficult to get good 
impression that it ha boards since the advent of
people to serve on scho l b ^ hool boards have not 
Equal Opportunity and th previously,
taken their duties as senously^the^ ^  V 
To retain local interest hcontrob This is a chal-
have a large measure c , ,, AdviSory Commis- 
lenge ^ UGo^ernmeiital Relations, Who Shoa.d 
Pap for Public Schools (1971) at 12-13.

A similar iach of

• s r z  - j s r ^ ^ r ^ g o v o —  a -



experience under this program, the Hawaiian »
ture by Act 38 of the Regular Session of 1968 - now o..b 
fied as Hawaii Revised Statutes Section 2i.l> adopted an 
act restoring to the counties the power to supplement 
state funds for school construction and transportation.

»The act in question was “declared to be an urgency meas­
ure deemed necessary in the public interest by its pie- 
amble. The preamble went on to recite:

“Under existing law, counties are precluded from 
doing anything in this area, even to spend their own 
funds if they so desire. This corrective legislation is 
urgently needed in order to allow counties to go above 
and beyond the state s standards and provide educa­
tional facilities as good as the people of the counties 
want and are willing to pay for. Allowing local com­
munities to go above and beyond established mini- 
mums to provide for their people encourages the best 
features of democratic government.”

Dissatisfaction with the consequences of full state fund­
ing in Hawaii has not been confined to its legislature.* The 
Supreme Court of Hawaii in its opinion in Spears v. 
Honda, 51 Hawaii 1, 7 (1968), a case invalidating a pro­
gram providing bus transportation for private and par® 
chial school students, alluded to the uniquely significant 
position of private schools in Hawaii which had survived 
throughout the present century and went on to refer 
to the “stinginess” of the Hawaiian Legislature with re­
spect to appropriations for public schools and to the uni­
versal mediocrity of Hawaiian public schools under the 
full state funding system:

* Full state”funding in Hawaii has limited local initiative Contrary 
to plaintiffs’ postulate, it has not eliminated inequalities but merely 
rendered them less visible. Salaries per pupil m 1970-71 varied from 
S407 in the Nimitz School to $1181 in the Hookena School, agams 
a state average of $597. Hawaii Public Education Department, 
District Summary of School Expenditures, 19/0-/1.

VO-1

_ .. .. . ............ .. < i cvilings upon cx-
• i • vt i- iPh'i-r" districts would be a tend- rx r.diturcs tn the we.iUtmr oim. o

cncv of residents <*f thi-w districts to resort in greate 
measure to private schools. This phenomenon has been 
noted in the aftermath of the abolition of the District of 
Columbia Track System in Hobson r. Hansen an a was 
pointed to as a probable consequence of the relief soug 
L  the court in Mclnnis v. Shapiro, 293 F. Supp. o27 
<ND 111 1968) at notes 37-38. See also Kurland. Equal 
Educational Opportunity: The Limits of Constitutioiiall 
Jurisprudence Undefined, 35 U. Chi. L. Rev. 583, 59a 
11968) In response to this very real possibility Pro­
fessor Coons and his colleagues have tendered two an­
swers Their first suggestion is that exercise of the right 
to private education should be further burdened; in Dr. 
Coons’ words “of course, it is up to the state as to whether 
they can do that.” (Mondale Committee Hearings pages 
6833-84). See also Coons, Clune and Sugarman, Private 
Wealth and Public Education at 277-78; Mondale Com­
mittee Hearings at page 6884 (testimony of Mrs. Sarah 
Carey). It is in addition suggested by Professor Coons 
and his colleagues that “further, it seems appropriate for 
the court to view the class ‘children as simply a sub 
group of the class ‘poor’. Realistically, all children are 
poor * * * such separation of the interests of child and 
parent could be enormously significant in future encoun­
ters among pupils parents and the state on issues ranging



from compulsory education to school finance.” Coons, 
Clune, and Sugarman, A First Appraisal of Serrano, 2 
Yale Review of Law and Social Action 111, 115 (1972). 
It may be that this Court’s recent opinion in the Yoder 
case has somewhat dampened the enthusiasm for this 
line of argument. The second answer of Professor Coons 
and his colleagues with respect to the possibility of flight 
to private schools, is the perhaps somewhat cavalier ob­
servation “if these families desert public education it is 
hard to see that much is lost.” Id. at 118. The difficulty 
with this attitude is that much of the present political 
support for state as well as local education programs 
emanates from the “wealthy” suburban constituencies in 
which the flight to private education may well take place.

Imposing a rule requiring full state funding would be 
to decree that no new educational program could be em­
barked upon until it attained majority support in the state 
as a whole. It is part of the genius of our federal system 
that no such stultifying barrier to progress or greater ex­
penditure is imposed upon the lower levels of govern­
ment. The existence of national programs commanding 
majority support in the nation is not held to preclude the 
existence of state programs commanding statewide ma­
jorities but unacceptable to a national majority. Similarly, 
the existence of statewide programs commanding state­
wide majorities is not viewed as inconsistent with the 
survival of local programs commanding majorities in par­
ticular localities but not in the state as a whole and, in­
deed, the lack of majority support at any level of gov­
ernment for a public program does not under our system 
preclude individual private expenditures for social de­
siderata not publicly recognized. Surely this feature of 
our system of government has been conducive to progress. 
Many educational innovations now accepted by state ma­
jorities including special education for handicapped pupils,



Coons, 
ano, 2 

H1972).
Yoder 

[tor this 
Coons

U  flight
[ojer ob­
tain it is 
| .jfficulty 

political 
1 ;ro grams

p Similarly,
. a- K £ state-

- Sr •s.'ith the
Nps in par-
m t  and, m- 

of gov-
s 'C system 

social de­
nature of

| progress, 
hate ma- 
*-d pupils,

53

kindergarten schoSdTstric^
the like were pioneered m w e *  which would al.
While plaintiffs profess o taxing them-
l0w local districts to raise added funds y  n Qf
selves more heavily an the authors of their
the added proceeds tc> o e e full state funding or
scheme recognize that in P ^  resUit of the re-
fully state controlled funding t o l  level of disbe­
lief sought. The oblitera ion ff , compiaint; its
tion is effectively demanded b^ plaints ^
sponsors have made plain P Wholly apart
and state discretion will shortly _fo ^  # constitution 

from the inconsis ency language hostility
government, can it be 

»o se d  that this program is the way to maximize pub- 
lie expenditures on education?

r ? "  " "
- h a r  to those urged by

lowed to spend moiemo y, .  h tax rates, than those 
be it private instruction or higher tax râ  
who do not value education so highly.

"Rnr̂ rifruGZ tuIg, cind. th6 rG§iniG That the end result of a Rodriguez ru u
of full state funding enforced by it will be
in total educational spending is apparent.

“ [Alt least some of the support 
ing in California is comi g Taxnavers who have
a way to hold down in their
fought school tax “ i  , 0 m ove the decision
local districts are now piessing

v V !
W m & r M -

S-.-ti --H.v

' C1. Vv£ ■

-;r .



tn the state level The lobbies for school improve- 
UmPer S n « s  to be strongest at the W  leva . 
That in fact, is one reason for the local disparities 
Districts with equal wealth choose to tax the^elves  
at different levels. Whatever benefits statewide ft 
nancine might bring to California s schools, the char 
acter of stats politics under Governor Reagan sugges 
that it will not necessarily increase the money spen 
on them.”

Anderson, Study in California: Financing Schools: Search 
for Reform. Washington Post, May 31, 1972.

LACK o f  r e l a t i o n s h i p  b e t w e e n  e d u c a t i o n a l

SPENDING AND EDUCATIONAL ACHIEVEMENT
The opinion of the Rodriguez court is unclear as to 

whether the gravamen of the constitutional violation found 
by it consists of the denial of education of equal quality to 
children in disfavored districts or rather consists of im­
position by the state of an unfair relationship between 
taxes and benefits. As previously noted, if the constitu­
tional violation is founded upon the second theory, e 
court’s position is entirely untenable in light of the! rule o 
Carmichael v. Southern Coal Company, 301 U.S. 495, which 
makes clear that there is no constitutional requirement of 
a relationship between taxes and benefits. Thus it would 
seem that the Rodriguez plaintiffs found their claim on the 
proposition that the state is providing their children with 
education of inferior quality. Certainly they do not urge 
that matters of taxing and spending generally are to be 
subject to a strict scrutiny test. Indeed, it is clear tha 
even the rational basis test does not apply to such purely 
fiscal determinations as to which the powers of legisla­
tures state and federal, have traditionally been held to be 
almost plenary. Since the decision rests upon the premise -  
rejected by Judge Harvey in his eloquent opinion in Parker



rprove- 
level, 

parities, 
^-selves 
l-tide fi- 

char- 
L> fjggest 
[ i spent

H S  .'?arch

•lON’AL 
AIN'T 

rc as to 
a found 

J Tity to 
i  uf im-

J  .| tween 
) ■ nstitu- 

the 
role of 
which 

of 
would 
on the 

with 
M urge 

to be 
that 

Purely 
•°gisla- 

to be 
ise —  

Parker

v. Mandel —  that there is something peculiarly significant 
about the detriment resulting to Plaintiffs from the system 
of educational finance, it was incumbent upon the plaintiffs 
to show a significant relationship between educational 
spending and educational achievement. This burden they 
did not and cannot sustain.

Even cursory review of the evidence in the record reveals 
that the disparities in spending between varying school 
districts are largely, if not entirely, explained by two 
factors: (1) variations in teachers’ salaries, largely re­
flecting similar variations in wage levels and prices in 
varying portions of the state; and (2) variations in class 
size. The available studies on the relationship of educa­
tional spending to educational achievement speak with 
almost one voice on the insignificance of such differences. 
As is well known, the most extensive study of these rela­
tionships is that contained in the so-called Coleman Report, 
U.S. Office of Education, Equality of Educational Oppor­
tunity (1966). That report concluded:

“It is known that socio-economic factors [of the 
students] bear a strong relation to academic achieve­
ment. When these factors are statistically controlled, 
however, it appears that differences between schools 
account for only a small fraction of differences in pupil 
achievement.”

The Coleman Report found that the teacher pupil ratio 
“showed a consistent lack of relationship to achievement 
among all groups under all conditions” (p. 312). In addition 
the Coleman Report observed: “Differences in school fa­
cilities and curriculum, which are the major variables by 
which attempts are made to improve schools, are so little 
related to differences in achievement levels of students, 
that, with few exceptions, their effects fail to appear even 
in a survey of this magnitude.”

55



56

The Coleman Report was no ordinary researeh study. It

has been described as follows. ^  opportunity,
“The study, Equality J Commissioned under

was hardly an every ay ^  ^  great bills of the
the Civil Rights Act o ’ , b the United States
Twentieth Century, sponsoredby most vigorous 
Office of Education in social scientists
leadership and conducted by £ * 8 ^  powerful 
at just the momen begn devei0ped, the study 
methods of ana ysi largest in the history of social 
was perhaps the second la g vthingj even more
science. Its findings w ’ . gtollesky and Lesser 
extraordinary than its g • rable detachment:
summarize these e j e c t e d  to find, direct
‘Coleman failed to u n it ie s
evidence of large: ineq children from different ma­
in schools attended b y ch^  ^tudy set out to docu- 
jority or minority group J minority groups
ment the facts that f une al and that this m-
school facilities are sh Ply J hievement. Data did 
equality is related to stua small differences
not support either cone u  ̂ discernibleh, school facimms d ,4 ™ s tohadMt, ^  „ t ,

relationship to th intended to prove beyond
effect, the Coleman st^ y  theses of the reform estab- 
further question two cen aVailable to minori-
Ushment: first that school^ e* J a™ ond that this 
ties were shocking y' This, of course, was
accounted for unequal ,, pose two equally
not found. The
difficult choices ' that the achievement of
first would be to cone nnnnrtunity — increasingly
? r 1d^n^ermsCaof0compSable educational achieve- 
defined in terms ^  and majonty groups -
ment on the pa expenditures of money and
will require vastly gre£\ , L envisagCd. The second 
social effort than even hey schools as

r^sh ou ld b e  downgraded in favor of a vast national



■ m & A
- —

56

.. as no ordinary research study. It
lows:

of Educational Opportunity, 
vdav affair. Commissioned under 
of 1964, one of the great bills of the 

sponsored by the United States 
in a period of its most vigorous 

Jucted by leading social scientists 
nt when incomparably powerful 
s had been developed, the study 
ond largest in the history of social 

were, if anything, even more 
its genesis. Stollesky and Lesser 

dings with admirable detachment: 
nd what he expected to find, direct 
icqualities in educational facilities 
i by children from different ma- 
;roups. The study set out to docu- 
t for children of minority groups 
sharply unequal and that this in­

to student achievement. Data did 
inclusion. What small differences 
lid exist had little or no discernible 

level of school achievement. In 
study was intended to prove beyond 
o central theses of the reform estab- 
school facilities available to minori­
ty unequal; and second that this 
ual outcomes. This, of course, was 
n’s findings thus pose two equally 
r the reform establishment. The 
conclude that the achievement of 
ional opportunity —  increasingly 
'• comparable educational achieve- 
f minority and majority groups —  
greater expenditures of money and 
en they had envisaged. The second 
le that improvement of schools as 
ngraded in favor of a vast national

57

effort to liquidate the lower class, in Walter B. Miller’s 
phrase, and thereby remove the apparently insur­
mountable —  or at least not likely to be surmounted —  
restraint on educational achievement among lower 
class youth, especially in urban ghetto areas. Under­
standably, the reform establishment chose first of all 
to concentrate on Coleman’s findings, rather than on 
their implications. . . .  A major element in the re­
sponses of the reform establishment has been the mani­
fest fact that, heretofore, the public generally has been 
more willing to consider changes in educational insti- 
tions than economic and social institutions. Coleman 
must be taken to suggest that reform will be consider­
ably more difficult to achieve than has been expected. 
This is rarely welcome news, and has accordingly been 
resisted’.” Moynihan, “Sources of Resistance to the 
Coleman Report”, in Harvard Educational Review, 
Equal Educational Opportunity at 25, 26, 28-29, 30 
(1969).

The Report’s conclusions have gained much professional 
respect. See, e.g., the article by former Dean of Harvard 
Graduate School of Education, Sizer, Low-Income Families 
and The Schools for Their Children, 30 Pub. Admin. Rev. 
340 (1970); and Cohen, Policy for the Public Schools: 
Compensation and Integration, 38 Harv. Educ. Rev. 114 
(1968). Re-analyzing the Coleman data, a later study ar­
rived at the same conclusion. 1 U.S. Commission on Civil 
Rights, Racial Isolation in the Public Schools 86 (1967).

The Coleman Report was a disinterested study. There is 
no reason to believe that the conclusions reached in it were 
in any way palatable to Professor Coleman or its other 
authors, rather the contrary. See Schoettle, Equal Protec­
tion Clause and Public Education, 72 Columbia Law Review 
at 1378-1388 (1972). Subsequent to publication of the Cole­
man Report:



•'A recently published re-examination of the Cole- 
mar̂  data h / a - - ^ n ^ s o c t a l  —  m a 

faculty seminar at Ha t while avoiding
the findings of the origins t{^ dok>gical problems,
some of the original report s methoao B P influ.
Indeed, this re-exam, nation ' nd,' a‘ “  “ achievoment 
ence of school expenditures o original Cole-
is even weaker thanwas^ndic ̂  ^ Qynihan> A  Path- 
man Report. See M , Educational Oppor-
breaWnp Report in On E q u d .^  Rcport ^

T'̂ nlZlo
ity of E ln c a ^ a l  l Goldstein, Inter-District 
Reconsidered m Id. 2o . A Critical Analysis
Inequalities in School FJ™£C 9’ 120 University of
n-f ^pwclyio v Priest end i t s  ± y y / 1 nno\
Pennsylvania Law Review 504, 520, note aO (19721,

dren or other to r ‘ se

givesflittle evidence that any 

widely used school policy -  resource has an appreciable 
effect on achievement scores.

The findings of the Coleman Report are supported by 
numerous prior studies. Among them is the leading British 
study of these matters, the so-called Plowden Report, Cen- 
ral Advisory Council on Education, Children and Their 

p i t y  Schools<2 Volumes, 19671. The findings of this 
tn o rt have been summarized by Professor Guthrie, Klein- 
dorfer, Levin and Stout, as follows.



53

lishcd re-examination of the Cole- 
,.e 0f eminent social scientists in a 

Harvard University has confirmed 
ie original report, while avoiding 
,1 report’s methodological problems, 
animation indicates that the inllu- 
ncnditures on student achievement 
„ was indicated by the original Cole- 
Mosteller and Moynihan, A Path- 

-j On Equality of Educational Oppor- 
, ■ Jcncks The Coleman Report and 
Wisdom in Id. 69-115; Smith, Equal- 
l Opportunity: The Basic Findings 
d. 230-42.” (Goldstein, Inter-District 
hool Financing; A Critical Analysis 
st and Its Progeny, 120 University of 

Review 504, 520, note 50 (1972).

lination of the Coleman Report con- 
wav to deal with the educational 

[Iren, whatever their race, was to im- 
comes of their families and also con- 
spending on schools had little effect 

Tformance of either lower class chil- 
■n. The Jencks study concluded “the 
>ach to raising achievement is to raise 
ie data gives little evidence that any 
xilicy or resource has an appreciable 
t scores.”

io Coleman Report are supported by 
os. Among them is the leading British 
s, the so-called Plowden Report. Cen- 
•il on Education, Children and Their 
Volumes, 1967). The findings of this 
nmarized by Professor Guthrie, Klein- 
tout, as follows:

“Except for the fact that the study limits itself to a 
concern for elementary school students, its findmgs and 
?he controversy surrounding them are not very differ­
e d  from those produced by the Coleman Report in this 
nation.” (Guthrie, et al„ at page 74.)

The regression analysis undertaken as part of -he na 
tional survey of primary education in England reached the

conclusion that:
“The specific contributions made by the variation in 

parental attitudes are greater than those made by the 
variation in home circumstances, while the latter 
turn are greater than those made by the variations 
between schools and teachers that we have taken mt 
account.” (Id. Volume II at 188.)

The Encyclopedia of Educational Research (1950), ob­
served in summarizing over 200 research studies on class

S 1 Z 6  *
“On the whole the statistical findings definitely favor 

large classes at every level of instruction, except kin­
dergarten . . . The general trend of evidence places the 
burden of proof squarely upon the proponents of sma
classes.”

The President’s Commission on School Finance recently 
specially commissioned a survey of the available literature 
relating to the effects of additional school spending on 
educational performance. Its final report concluded:

“The relationship between costs and quality in edu­
cation is exceedingly complex and difficult to^docu­
ment. Despite years of research by educators and econ 
omists, reliable generalizations are few and scattered 
* * * The conviction that class size has an important 
or even a measurable effect on educational quality can­
not be presently supported by evidence. A review o 
a great body of research on the effects of class size 
/ inii.+oarhpr ratios, to use a technical term) yields



60

no evidence that smaller classes, of themselves, pro­
duce more or better education in any accepted sense 
Nor conversely, has it been shown conclusively that 
larger classes, of themselves, provide less or poorer 
education to children -  and they obviously cost less. 
President’s Commission on School Finance, School, 
People and Money, Final Report (1972), at x-xi.

“In a study prepared for this Commission by a dis­
tinguished research organization, all available researc 
projects were examined in an effort to determine 
effect of class size on educational effectiveness. This 
study —  which examined the body of research m this 
area —  found no discernible difference in student 
achievement even though classes ranged from 18 to 
up to 35 to 1 * * *• Despite diligent searches and wide­
spread opinion to the contrary, the Commission finds no 
research evidence that demonstrates improved student 
achievement resulting from decreasing pupil-teacher 
ratios.” * (Id. at 59.^

The implication of these studies for the relief sought by 
plaintiffs has been pointed out by many commentators. 
Thus, it has been rather succinctly observed that.

’ “Any reshuffling of dollars -  if spent within the 
present range of variability on more highly paid teach­
ers, reductions in class size, and buildings —  is not 
likely to have much effect on the tested cognitive skills, 
or the credentials necessary for entrance into honors 
programs, jobs or college or on the values of the chil­
dren. What the reshuffling of dollars will do is reshuffle 
teacher salaries in rough proportion. That such a result 
will not materially alter the outcome of schooling for 
the child should not be all that surprising. Teachers, 
like the rest of us, are not paid for how well they per­
form (even if we could define what performance 
means).” Dimond, Serrano: A Victory of Sorts for 
Ethics, Not Necessarily for Education, 2 Yale Review 
of Law and Social Action 133, 137 (1972).

* See The Rand Corporation, H o w  E ffec tiv e  is S ch oo lin g  (1972).

Y<
sion:
a n d

also
mat

T
feet 
(Ca 
ary 
con 
tier 
cer 
mo

c*-
obi
Scl

sij
to
K
(1
sc
U
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tc
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ti
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t



60
61

nailer classes, of themselves, pro-
• education in any accepted sense, 
s it been shown conclusively that 
icmselves, provide less or poorer
n __and they obviously cost less.”
ision on School Finance, Schools, 
Final Report (1972), at x-xi.
ired for this Commission by a dis­
organization, all available research 
intd in an effort to determine the 
on educational effectiveness. This 
mined the body of research in this 
discernible difference in student 
hough classes ranged from 18 to 1 
Despite diligv nt searches and wide- 
p contrary, the Commission finds no 
>iat demonstrates improved student 
og from decreasing pupil-teacher 

I . )

ese studies for the relief sought by 
nted out by many commentators.
■ succinctly observed that:
of dollars —  if spent within the 

riability on more highly paid teach- 
ffass size, and buildings —  is not 
effect on the tested cognitive skills, 

accessary for entrance into honors 
allege or on the values of the chil- 
auflling of dollars will do is reshuffle
• nigh proportion. That such a result 
alter the outcome of schooling for

»t be all that surprising. Teachers, 
are not paid for how well they per- 
[• could define what performance 
i Serrano: A Victory of Sorts for 
arily for Education, 2 Yale Review 
potion 133, 137 (1972).

■a. 11 oiv E ffec tiv e  is S ch oo lin g  (1972).

Yet another report has recently reached similar conchi­
e s .  Center for Educational Policy Research, Education 
and Inequality: A Preliminary Report (1971) at 47-64. See 
also Wynne, The Politics of Accountability: Public Infor­
mation About Public Schools (1972).

The observations of other commentators to similar ef­
fect are legion. Thus, Professor Moynihan has observed 
-Con Courts and Money Do It?, New York Times, Janu­
ary 10, 1972 page 1): “the only certain result that will 
come from this [the Rodriguez decision] is that a par­
ticular cadre of middle class persons in the possession of 
certain licenses —  that is to say teachers —  will receive 
more public money in the future than they do now.”

Similarly, Professor Roger Freeman of Stanford has 
observed: (Address to the Annual Meeting of the National 
School Boards Association. April 14, 1972 > :

“Added school spending provides sizable benefits 
to teachers and administrators in the form of more 
and better paid jobs, greater amenities and reduced 
work loads. Its tangible advantage to children s edu­
cation has yet to be demonstrated.”

The findings of the Coleman Report have met with little 
significant dispute. The only substantial work purporting 
to dispute the Coleman findings is the study by Guthrie. 
Kleindorfer, Levin and Stout, Schools and Inequality 
(1972). That work is scarcely a disinterested work of 
scholarship. It was sponsored and paid for by the National 
Urban Coalition which, the authors tell us, “was specifi­
cally interested in supporting an objective study relevant 
to a Michigan court case of national significance for edu­
cation * * * The Board of Education of the School Dis­
trict of the City of Detroit had filed a complaint alleging 
that Michigan’s governmental arrangements for educa­
tion, violated * * * the Equal Protection Clause.* Given

* The suit was later dismissed for want of prosecution.



62

this concurrence of interest, we accepted the National 
Urban Coalition offer of assistance.” (Schools and In­
equality at xvi). Only the fourth chapter of the resulting 
book is devoted to the relation of school services to stu­
dent achievement. However, the study undertaken by 
these four writers, a fragmentary description of which ap­
pears at pages 84 through 90 of their book, was not a 
study of the relation of monetary inputs to educational 
performance. The extent of the study undertaken or cor­
relations found by them has not been clearly disclosed 
and it appears that the more significant correlations found 
related to such matters as the relation between student 
achievement and such non-monetary variables as teacher 
morale, teacher verbal ability and the percentage of stu­
dents transferring into the school —  variables which bear 
no necessary relationship to school spending or at least 
no demonstrated relationship to school spending. Indeed, 
notwithstanding the fact that the Guthrie-Levin book 
is frequently cited as contradicting the Coleman study, 
when the matters studied in it were put to the test in liti­
gation in Michigan none of its authors appeared as wit­
nesses in the extended trial in the Michigan school fi­
nance case.* This is scarcely surprising, since Professor 
Guthrie had shortly before testified in a Michigan law 
suit involving metropolitan school desegregation prob­
lems, Bradley v. Milliken, U.S. Dist. Ct. E.D. Mich. No. 
35257 that:

“Q. Does your familiarity at the moment permit 
you to agree with me to the effect that the general, 
returning to the implications of Mr. Ritchie’s question, 
the approach of additional dollars without more would 
seem on the basis of the [Moynihan and Mosteller] re­
analysis [of the Coleman Report] as well as the other

* M illiken  v. G reen, Mich. Cir. Ct. Ingham County, No. 13664-C 
(1972).

F
lari
tior
get

E 
fen 
plai 
is ,• 
<at



62 63

interest, we accepted the National 
- of assistance.” (Schools and In- 
■ the fourth chapter of the resulting 
c relation of school services to stu- 
lowever, the study undertaken by 
ragmentary description of which ap- 
rough 90 of their book, was not a 
of monetary inputs to educational 

:ent of the study undertaken or cor- 
u>m has not been clearly disclosed 
e more significant correlations found 
'rs as the relation between student 
l non-monetary variables as teacher 
>1 ability and the percentage of stu- 
n the school —  variables which bear 
ship to school spending or at least 
ionship to school spending. Indeed, 
fact that the Guthrie-Levin book 

s contradicting the Coleman study, 
died in it were put to the test in liti- 
onc of its authors appeared as wit- 
ed trial in the Michigan school fi- 
searcely surprising, since Professor 
before testified in a Michigan law 

'politan school desegregation prob­
l e m  U.S. Dist. Ct. E.D. Mich. No.

familiarity at the moment permit 
h me to the effect that the general, 
mplications of Mr. Ritchie’s question, 
■iditional dollars without more would 
" f  the IMoynihan and Mosteller] re- 
-oloman Report] as well as the other

• (->r Ct. Ingham County, No. 13664-C

data to which you referred, to be inadequate in terms 
of the problem? A. My response to Mr. Ritchie’s 
question was not based very much on the Coleman 
Report, rather it was based on my work with Senator 
Mondale’s Select Committee on Equal Educational Op­
portunity where I have come to see almost every effort 
we have made at putting additional dollars on the 
head of poor children has somehow never occurred 
because we have never gotten the additional dollars 
there. As Senator Mondale says ‘Everytime we try 
to help poor children in this nation, someone robs the 
train on the way’. That seems to be what happens 
when you look at actual delivery of Title One dollars 
to poor children, it often doesn’t get there and a vol­
ume which has been mentioned here, Schools and In­
equality, for the State of Michigan, myself and col­
leagues found a negative relationship between the 
child’s income and the amount of federal money being 
spent on him. Well, it wasn’t a negative it was a posi­
tive relationship, poor children were not having 
money spent on them in Michigan the way it was al­
leged to be the case .

Q. If the dollars got there, but nothing else was 
changed, including social SES composition and racial 
composition, would you be optimistic about the dollars 
spent? A. No, I would not be optimistic even if the 
dollars were changed by thousands.” (Transcript of 
hearing, pages 523-524.)

Elsewhere at the same hearing Professor Guthrie re­
ferred to socio-economic status as “to date the best ex­
plainer of a child’s school achievement that we have. It 
is a more powerful explainer than race, for example.” 
fat 4501.

Professor Guthrie’s colloborator, Professor Levin, simi­
larly appears to hold to the view that the limited addi­
tional increments of funds which “poor” districts would 
get from an application of the Rodriguez doctrine would

IH
N

H
1



v:T-z •Iff
......„n  w__

»$r .«WXv«

64

be of negligible educational value. Dr. Levin testified be­
fore the Senate Select Committee on Equal Educational 
Opportunity (Hearings, part 7 page 3516) as follows:

“One of the problems is that additional dollars, as 
they move into the educational system, have never 
really been married up to education * * * They have 
not thought about why the particular techniques ap­
proaches, and resources that they have used have 
failed the same children in the past. They have not 
questioned whether just larger quantities of the same 
resources that have failed children in the past are 
going to succeed * * 1(1 ”.

After an extensive trial concerning these cost-quality 
issues, in a state unique for its possession of a statewide 
educational measurement program, the Circuit Court for 
Ingham County, Michigan made the following findings, 
among others:

“1. A statewide comparison of State Equalized Valu­
ation Per Pupil v. Composite Achievement reveals a 
low correlation between test scores of 4th and 7th 
grade composite achievement tests and SEV. (Ex. 127, 
81, 82; Tr. 2716, 2778.)

2. A statewide comparison of Total Current Oper­
ating Expense Per Pupil v. Composite Achievement 
reveals a low correlation between test scores on 4th 
and 7th grade composite achievement tests and Total 
Current Operating Expense. (Ex. 127, 88, 89; Tr. 2224.)

3. A statewide comparison of Total Instructional 
Expense v. Composite Achievement reveals a low cor­
relation between test scores on 4th and 7th grade com­
posite achievement tests and total instructional ex­
pense. (Ex. 127, 90, 91; Tr. 2778.)

4. A statewide comparison of Student Evaluation 
of Socio-economic Status and State Equalized Valua­
tion Per Pupil reveal a low relationship (Tr. 2716 
and 2778.)

5. A statewide comparison of Student Evaluation 
of Socio-economic Status v. Composite Achievement

re
4t
ê
01 
a 
r< 
o 
o
2

(
ed
co:
ar



64 65

tional value. Dr. Levin testified be- 
t Committee on Equal Educational 
s, part 7 page 3516) as follows:
jblems is that additional dollars, as 
he educational system, have never 
?d up to education * * * They have 

why the particular techniques ap- 
;ources that they have used have 
fuldren in the past. They have not 
2r just larger quantities of the same
ve failed children in the past are
* * * *>

trial concerning these cost-quality 
ue for its possession of a statewide 
ient program, the Circuit Court for 
ligan made the following findings,

comparison of State Equalized Valu- 
. Composite Achievement reveals a 
'etween test scores of 4th and 7th 
chievement tests and SEV. (Ex. 127, 
78.)
comparison of Total Current Oper- 

■r Pupil v. Composite Achievement 
relation between test scores on 4th 
nposite achievement tests and Total 
l Expense. (Ex. 127, 88, 89; Tr. 2224.)

comparison of Total Instructional 
>site Achievement reveals a low cor­
est scores on 4th and 7th grade com­
at tests and total instructional ex- 
•0, 91; Tr. 2778.)
comparison of Student Evaluation 
Status and State Equalized Valua- 

eveal a low relationship (Tr. 2716

comparison of Student Evaluation 
Status v. Composite Achievement

reveals a moderate correlation between test scores on 
4th grade composite achievement test and a student 
evaluation of SES and a high correlation of test scores 
of 7th grade composite achievement and student evalu­
ation of SES. Accordingly, statistical analysis of the 
relationship between student evaluation of SES and 
composite achievement scores reveals a high degree 
of relationship. (Ex. 127, 97, 98, Plaintiffs’ Ex. 80; Tr. 
2291, 2293.)

6. An analysis of the data compiled by the Michi­
gan Department of Education contained in Exhibit 
32, using the stepwise mutliple regression-technique 
indicates that there is ; low statistical relationship 
between monetary inputs and achievement output 
(Tr. 2634). Thus, the low degree of relationship be­
tween financial inputs and achievement outputs found 
in the uni-variate statistical analysis (scattergrams 
and correlation coefficients) is confirmed in the multi­
variate context (stepwise multiple regression equa­
tion) (Tr. 2636). On the other hand, in both the uni­
variate and the multi-variate context the relationship 
of SES to composite achievement is moderate at 4th 
grade and moderately high to high at 7th grade level 
(Tr. 2638).

7. A statewide analysis of the data contained in 
Exhibit 32 using the factor analysis technique of 7th 
grade data, reveals that SES and composite achieve­
ment are contained in the same family of variables 
(Ex. 122; Tr. 2672). Thus, SES appears to be related 
to the same factor that achievement is related to (Tr. 
2672). However, all of the monetary resource varia­
bles (SEV, local revenue, and state aid) are found to 
belong to an entirely different factor (Tr. 2672-73). 
This indicates that student achievement and SES are 
operating independently of monetary resources.”

Clearly, even a cursory examination of the pertinent 
educational literature reveals that there is no necessary 
cost-quality relationship or, at the least, that these issues 
are highly debatable. Under these circumstances it is



66

apparent that this case is about taxes and expenditures 
and not about education and that the state governments 
possess a rational basis for declining to appropriate the 
approximately ten billion dollars necessary to produce 
abstract monetary equality with its concomitant detri­
ments to local fiscal control and to the future willingness 
of voters and legislators to avail themselves of, or ap­
propriate funds for, public school systems. It is hardly 
appropriate for this court, or any court to try these dis­
puted cost-quality issues; it is no more within the province 
of courts than it is within the province of legislators, in 
the face of the conflicting scientific evidence, to make of 
Professor Guthrie an American Lysenko. Cf. Epperson v. 
Arkansas, 393 U.S. 97 (1968).

LACK OF RELATIONSHIP BETWEEN PROPERTY 
ANI) INCOME

The essential thesis of the present wave of lawsuits is 
that there is a necessary connection between variations in 
the wealth of school districts and variations in the educa­
tional outcome of their individual students. But if there 
is one thing that the literature of this field makes entirely 
clear it is not merely that there is no connection between 
educational spending and educational achievement but 
also that there is no necessary connection between dis­
trict wealth defined in terms of property and educational 
spending. The effort to translate the necessary conse­
quence of the division of the nation into different organs 
of state and local governments into a deprivation of in­
dividual rights must hence fail.

It has been elaborately and repeatedly demonstrated 
that the property wealth standard utilized by the Cali­
fornia and Texas Courts bears no necessary relationship 
to the individual wealth of residents of the affected school

distric
distric
fessor

v.
c:
li
ti
d
s
c
c
(

]

p
ecoi
tior
car
we;
tiv<
Se i
Ka
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on
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er



66 G7

se is about taxes and expenditures 
ion and that the state governments 
;is for declining to appropriate the 
llion dollars necessary to produce 
juality with its concomitant detri- 
ontrol and to the future willingness 
tors to avail themselves of, or ap- 
Dublic school systems. It is hardly 
ourt, or any court to try these dis- 
ies; it is no more within the province 
•ithin the province of legislators, in 
ding scientific evidence, to make of 
American Lysenko. Cf. Epperson v. 
(1968).

ONSIIIP BETWEEN PROPERTY 
AND INCOME

; of the present wave of lawsuits is 
iry connection between variations in 
listricts and variations in the educa- 
ir individual students. But if there 
iterature of this field makes entirely 
that there is no connection between 
and educational achievement but 
necessary connection between dis- 

n terms of property and educational 
to translate the necessary conse- 

a of the nation into different organs 
eernments into a deprivation of in- 
hence fail.

ately and repeatedly demonstrated 
?alth standard utilized by the Cali- 
-uds bears no necessary relationship 
Ith of residents of the affected school

jistricts and that in no sense is the alignment of school 
iistricts a discrimination against poor persons. Even Pro­
h o r  Coons and his colleagues have conceded:

“The distinction between collective and individual 
wealth is worth considering. Serrano forbids dis­
crimination in education upon either basis, but it is 
likely that the proof required at trial will be confined 
to the wealth of school districts. At present it is very 
difficult to specify the degree to which personal and 
school district wealth coincide. The economists seem 
confident that the relation is positive but the anom­
alies are frequent and sometimes embarrassing. Not 
only do poor people inhabit rich industrial enclaves 
with low populations, but they also are found in large 
numbers in certain large cities, a few of which for 
school purposes, are relatively well off (e.g. New York 
and San Francisco — a primary cause is significant 
private school enrollment). Equally troublesome, per­
haps, the rich sometimes live in tax poor areas. Ser­
rano, thus, is not a one edged blade for the war on 
poverty.” 2 Yale Review of Law and Social Action at
114.

Professor Coons and his colleagues did not identify the 
economists who concluded that there is a positive rela­
tion between personal and school district wealth. But 
careful studies of the relationship of income to property 
wealth in two states, Kansas and California, have effec­
tively exploded this notion. In Ridenour and Ridenour, 
Serrano v. Priest'. "Wealth and Kansas School Einance, 20 
Kansas Law Review 213 (1972) the authors observed: 
“the application of a definition of wealth that relies only 
on assessed property valuation in Kansas would result in 
effective discrimination against taxpayers with little in­
come”. It further observed, citing a similar study in Cali­
fornia (Davies, The Challenge of Change in School Finance 
in National Education Association, Tenth Annual Confer­
ence on School Finance 199 (1967)):



“The practical result of the Serrano rationale in 
C a l ^ a n d  Kansas is to strike down de. ]»re 
crimination between pupils on the ba •
value per-pupil in favor of a scheme of defa-to  dis 
crimination on the basis of income per-pupil (at 224.)

It is even more dramatically observed.
“It was pointed out in the previous section that a 

study in California found only random correlation be* 
tween districts having high assessed value per-;pupil
and those having high income that there
of the foregoing figures it can be argued that the 
exists in Kansas almost an inverse correlation, dis 
tricts with highest income per-pupil have low assess 
value per-pupil and districts with high assessed value 
per-pupil have low income per-pupil (at 22b.

The study by Davies of California concluded:
“California's present criterion of wealth imputes to 

the high wealth counties ability, that, on the basis of 
income they do not possess. Ability to finance educa- 
“ on m fy be exaggerated. These counties can raise
equivalent sums of money only by ;
tively greater share of income to taxes. Tenth Annual
Conference on School Finance at 200.

These articles point out that in many states the net effect 
of a change from the present system of school finance to a 
system of school finance fully consistent with Rodriguez 
and Serrano may be to burden more heavily the low income 
taxpayers. In the authors’ words, the Serrano court s con­
clusion fails to recognize that there is no guara" te^  rela’  
tionship between ownership of property and a fixed yield

from it” (at 224).
The detriment to minority group pupils as a class from 

the decision in Serrano has already been noted, 59% of such 
pupils living in districts with above average property



68
69

result of the Serrano rationale jn 
nsas is to strike down de jure dis 
on pupils on the basis of assessed 
favor of a scheme of de facto dis 
basis of income per-pupil” (at 224 i

latically observed:

>ut in the previous section that a 
found only random correlation be 
ing high assessed value per-punji 
«h income Per-pupil. On the basis 
urcs it can be argued that there 
most an inverse correlation- dis 
icome per-pupil have low assessed 
districts with high assessed value 
ncome per-pupil” (at 225J

California concluded:

7  cri7 r1ion ^f wealth imputes to 
J*1CS ablhty> that, on the basis of 
£ssess. Abihty to finance educa­
ted . These counties can raise 

[mcy only by apportioning a rela- 
f income to taxes.” Tenth Annual 
r mance at 200.

that in many states the net effect 
mt system of school finance to a 
ahy consistent with Rodriguez 
len more heavily the low income 
uords, the Serrano court’s “con- 
•at there is no guaranteed rela- 
P o Property and a fixed yield

yproappupds as a class from

» h y ,beenn° ted- 59*o fsu c h  
above average property

Nor is this all. The New Brunswick experience is illus­
trative of another possible consequence of the Serrano- 
Rodriguez rule. There, the introduction of full state fund­
ing was accompanied by a shift from the property tax to an 
even more regressive sales tax:

“One of the elements that helped sell Equal Oppor­
tunity to the people was the fact that it represented ‘a 
shift away from direct taxation as exemplified by 
property taxes . . . toward indirect taxation —  the 
sales tax,’ explained Mr. Arsenault Lprincipal Secre­
tary to the present Prime Minister], ‘Property taxes 
especially went down.’ ” Advisory Commission on In­
ter-governmental Relations, Who Should Pay for Public 
Schools at 10.

Thus, not only on the expenditure side but also on the tax 
side it is possible, indeed probable, that introduction of the 
Rodriguez-Serrano rule may be actually detrimental to 
spending on the education of children of low-income 
families.

It should further be noted that the lack of relationship 
between low district property values and low educational 
achievement is exacerbated by another factor: the extreme 
present reluctance of many low property value districts 
because of low educational costs in rural areas to make 
even an average tax effort for education. The importance 
of this effort factor was noted by the court in Mclnnis v. 
Shapiro, 203 F. Supp. at 333 (N.D. 111. 1968). It is also 
dramatized by the study of a state commission in Maryland 
which revealed that a large part of the lower expendi­
tures in many smaller rural counties was accounted for not 
by lower resources but by lower tax effort. See the table 
on “Effect of Differences in Effort” in [Maryland] Commis­
sion to Study the State’s Role in Financing Public Educa­
tion, Background Information (May 1970), pg. 68.



70

A REPRESENTATIVE STATE AID PROGRAM
It is the thesis of the framers of plaintiffs’ theory that 

legislatures are incapable of independently re-examining 
state aid programs unless prodded to do so by courts, that 
state aid formulas constitute examples of “settled wrong”, 
that existing state spending patterns and school district 
lines should be viewed for purposes of constitutional assess­
ment as though each state had a single united state school 
system, that existing formulas are capricious, unjust, and 
irrational, and that the explosion of legislative creativity 
they profess to desire is dependent upon judicial invalida­
tion of existing formulas. Examination of the history and 
rationale of state aid to education in a representative 
middle-sized state, Maryland, is sufficient to explode all 
these notions.

In Maryland, as in Virginia, North Carolina, and some 
Southern states, school district lines correspond exactly 
to the long established district lines of Maryland counties, 
just as in many New England, Midwestern, and Western 
states school district lines correspond exactly to town and 
township lines. The Maryland counties were established 
at early dates. Eleven of the 24 subdivisions were estab­
lished within their present borders prior to 1695; all but 
six of them were established prior to the ratification of the 
Constitution of the United States; and all but one of them 
were established prior to ratification of the Fourteenth 
Amendment, the most recent erection of a Maryland county 
having taken place in 1872. The dates of origin of the 
Maryland counties are as follows; St. Mary’s 1637, Kent 
1642, Anne Arundel 1650, Calvert 1650, Charles 1658, Balti­
more 1659, Talbot 1662, Somerset 1666, Dorchester 1668, 
Cecil 1679, Prince George’s 1695, Queen Anne’s 1706, Wor­
cester 1742, Frederick 1748, Caroline 1773, Harford 1773,



'TA
ILT
i

ATE A i*> PItOGIlAlVI
S ° f  P u f f s ’ theory that 

independently re-examining
dud lo do SO by court *

samples o f -'settled wrong” 
patterns and school district 
-OSes of constitutional assess- 
a a.ngle united state school

2 °  r ,PriCi° US' unJ “sC a»d
0 egislative creativity

,0nt upon ^ d ie ia l invalids, 
nmalton of ,he history and

m a representative 
sufficient to explode all

line’ Car° lina- and some 
ncs “ respond exactly 

jtes of Maryland counties 
Midwestern, and Western 
knd exactly

were established 
-ubdivisions were estab-
M . ' ° r to 16951 all but 
to 'he ratification of the 
P "  »ut one th™

Z V he Fourte™"'
a.,. “  1Iaryland county

S l ° ‘  " t o  of 'he 
' c  ary-s I637, K en(

: „ . “ rles Mesa, Haiti. 
-.Dorchester 16C8

" 4  s 1706- Wor.
* '  Harford 1773

71

Washington 1776, Montgomery 1776, Allegany 1739 Car- 
roll 1336, Howard 1851, Wicomico 1367, Garrett 1872. See 
generally Maryland Geological Survey, The Counties of

n Z n  ° rigin' Boundaries and Election Districts
C f t  f  6~57?' ArUcle 13) Section 1 of the Maryland 
Constitution of 1867, still in effect, effectively forbids the 
erection of new counties by providing that no new county 
shall contain less than 400 square miles or less than 10 000 
in abitants nor shall any existing county be reduced to 
less than the same amount in order to form a new county.

Maryland school boards possess no independent taxing 
authority. The taxes levied for schools are levied by thf 
county governments and that of Baltimore City and in­
cluded m county budgets. The counties are accorded by

ashmi L T 6i t0 ImP° Se UnHmiled Pr°Perty taxes as well 
as limited local income taxes and various other taxes. No

aparf?romSth i<' 1 HaS exbausted its taxin§ authority apart from the property tax; each subdivision is empow-
re o evy taxes which it does not levy. The Maryland

counties accord varied exemptions from their local property
axes ee 28th Biennial Report of the Maryland State

Department of Assessments and Taxation at 19-22 ) Real
property assessment is carried out and organized on a
county basis under the supervision of a state agency
(Maryland Code, Art. 81, §§ 232 ff.). fn no sense dJ s
Maryland have a unified school system.

Article V in  T T h ^  ^  SCh° 01 System’ created by
°  the MaryJand Constitution of 1864, which

P ovided for a state property tax to be distributed to the
counties on a per pupil basis and for a powerful State
Superintendent of Schools. The Convention adopting the
present 18 7 Constitution expressly repudiated this s t l
ystem in favor of a system under local control. See the



72

Report of the [Maryland] School Law Revision Commission 
(1968), at 27, summarizing the history and see Perlman 
(cd.), Proceedings of the Maryland Constitutional Con­
vention of 1867, at 200-202: “The economic expenses of the 
system, the mode of raising the money and the mode of 
expending it, and the power of the superintendent, are all 
reasons why this system should be dispensed with. *
The whole system has radical, fundamental objections. It 
would be supposed that it would be right to commit the ex­
penditure of those funds to those who contributed them, 
but these funds are placed beyond the control of every 
parent and guardian in the State; those who bear the 
burdens are denied all share in their direction.” < Remarks 
of Delegate Kilbourn). “Concerning the [state] system, he 
would say that it required an infallible head and an inex­
haustible treasury. [Laughter]” 'Remarks of Delegate 
Farnandis).

The limited remaining powers accorded the State Super­
intendent of Schools under the legislation adopted under 
the 1867 Constitution are generally inapplicable to the 
Baltimore City system (see Md. Code, Art. 77, §§ 142-145', 
which is independent of most of these mild measures of 
state control. The existence of large county school dis­
tricts has always limited disparities in school spending in 
Maryland, as has the fact that each county contains groups 
of widely varying income. Indeed, “the formation of single 
county wide school districts -  as in Maryland and 
Nevada — is often advanced as a solution to resource dis­
parities among school districts.” Advisory Commission on 
Intergovernmental Relations, State Aid to Local Govern­
ment (1969), at 49; Mondale Committee Hearings, at 8473. 
Nonetheless, Maryland has taken many measures to further 
equalize school spending. The initial such measure was 
taken by the adoption of a comprehensive school aid



73

(tool Law Revision Commission 
the history and see Perlman 

Maryland Constitutional Con- 
The economic expenses of the 

; the money and the mode of 
of the superintendent, are all 
>uld be dispensed with. * * * 
til. fundamental objections. It 
uld be right to commit the ex- 
those who contributed them, 
beyond the control of every 

State; those who bear the 
m their direction.” (Remarks 
cerning the [state! system, he 
i infallible head and an inex- 
erl (Remarks of Delegate

ers accorded the State Super- 
he legislation adopted under 
■nerally inapplicable to the 
id. Code. Art. 77, §§ 142-145), 
i of these mild measures of 
of larSe county school dis- 

urities in school spending in 
each county contains groups 
cod. ••the formation of single 

■ in Maryland and 
a solution to resource dis- 

Advisory Commission on 
Stdti Aid to Local Govern- 
onnmttee Hearings, at 8473.
■■n many measures to further 
' lni,lal sucb measure was 
comprehensive school aid

formula by Chapter 383 of the Maryland Acts of 1922. That 
formula was not the creation of a rustic legislature. It was 
prepared under the sponsorship of the General Education 
Board of New York by Dr. Abraham Flexner of Johns 
Hopkins, best known for his work leading to the reform of 
medical education in the United States.* The formula 
adopted anticipated that summarized the next year in the 
pioneering work by Professors Strayer and Haig, Financ­
ing of Education in the State of New York (1923), of which 
Professor Coons and his colleagues have written;

“The pioneer effort to translate the philosophy of 
equal education opportunity into a viable state finance 
program adjusting for district wealth variation was 
made by George E. Strayer and Robert M. Haig in 1923 
and later refined and developed by Paul R. Mort.
(Private Wealth and Public Education at 63.)

The 1922 act provided for a foundation program of edu­
cation in each county based upon set-pupil-teacher ratios, a 
state minimum salary scale graduated to qualifications and 
experience of teachers and additional allotments founded 
on the theory that teachers’ salaries should constitute not 
more than 76 U of total current costs. The portions of this 
program which could not be financed by the counties from 
a uniform tax were paid for by the state equalization fund.

In the years following its enactment, the program was 
periodically reviewed and progressively amended. In 1927 
a state retirement program for teachers was added; in 1929 
a state program of education for the handicapped was 
added; in 1933 aid to transportation costs was added and in 
1939 differentials between elementary and secondary school 
salary scales were eliminated. “This became known as the 
Maryland Single Salary Scale because Maryland was in the

* See Flexner and Bachman, P u blic  E du ca tion  in M a ryla n d  
(1921), at 8.



74

vanguard of this progressive advance.” (Report of the 
School Law Revision Commission at 12.)

In 1941, the program again underwent extensive review 
by eminent authorities from outside of Maryland, the state 
engaging the services of Dr. Herbert Bruner of Teachers 
College, Columbia University to direct a study for the Mary­
land School Survey Commission. The report concluded:

“In the intervening twenty-five years [since the 
Flexner report] strong leadership in the state depart­
ment combined with active and capable local initiative, 
has brough: to fruition many of the recommendations 
which the General Education Board Survey Commis­
sion made.” “The present system of state aid in Mary­
land is one of the most advanced in the county,” (at 
63).

In the same year, a court in Maryland (Chesnut, J.), 
approvingly quoted a bulletin of the United States Bureau 
of Education describing the program in glowing terms as 
“in a sound and relatively satisfactory way, equalizing] 
school burdens, revenues, and educational opportunities.” 
The opinion listed in detail “the outstanding features of the 
Maryland system of school support.” Mills v. Lowndes, 26 
F. Supp. at 797 n.3 (D. Md. 1939).

Following the war, the program underwent extended re­
view by two distinguished state commissions, the Sherbow 
Commission (1948), and the Green Commission (Maryland 
Commission to Study Public Education and Finances)
(1952). The latter of these Commissions, in summarizing 
the history of educational progress in Maryland, noted the 
pioneering role in introducing new programs played by 
bell-wether school districts. Neither of these Commissions 
recommended full state funding, both noting the detriment 
that would result from it to Baltimore City, then the richest 
subdivision in the state and the only subdivision not to



75

benefit from the equalization fund. See the Report of the 
Maryland Commission to Study Public Education and 
Finances (1952), especially at pg. 55.

Various liberalizing recommendations of these Commis­
sions were enacted into law, these including a revision of 
salary scales in 1947, an increase from $200 to $400 in aid 
for handicapped children and the addition of the twelfth 
grade to the foundation program in 1949, further salary 
increases in 1953 and 1955, creation of an incentive fund 
for school children in 1956, and creation of a program of aid 
to preschool handicapped children in 1957.

In 1958, the Maryland program underwent an unusually 
comprehensive review. The state again went outside its 
borders to engage the most eminent student of school 
financing in the nation. Professor Paul Mort of Columbia. 
The resulting study occupies a summary volume and thir­
teen printed volumes, issued over a period of three years, 
as follows:

Staff Study 1 — Stapleton. Educational Progress 
in Maryland Public Schools since 1916 
(1959);'

Staff Study 2 —  Dorn, What Money Does and 
What it Does Not Do (1959);

Staff Study 3 —  Sartorious, The Fortunes of 
Equalization in Maryland Since 1920 (1959);

Staff Study 4 — Zimmerman & Walker, The Tax 
Potential of Maryland, State and Local
(1959) ;

Staff Study 5 —  Zimmerman, Fiscal Adjust­
ments Over a Century (1959);

Staff Study 6 —  Woollatt, The Measurement of 
Cost in Maryland Public Schools (1959);

Staff Study 7 —  Woollatt & Zimmerman, An Eco­
nomic Index of the Maryland Taxpaying 
Ability of Maryland Public School Systems
(1960) ;



M B■ ■ k  wiM

76

Staff Study 8 —  Willis, A Program of Financing 
School Construction Designed to Safeguard 
the Current Operating Program in Maryland 
(1959);

Staff Study 9 — The Growing Edge Committee, 
The Maryland Schools and Mid-Century 
Needs;

Staff Study 10 — The Staff Characteristics Com­
mittee, Maryland’s Twenty-four Instruc­
tional Teams;

Staff Study 11 — Dorn, The Allocation of School 
Expenditures in Maryland Counties;

Staff Study 12 — Hardesty, The Relation of Ex­
penditures in Higher Education to Expendi­
tures for Elementary and Secondary Edu­
cation;

Staff Study 13 —  Rhodes, Lay Participation in 
School Budget Development in Maryland.

In the Staff Study dealing most directly with equaliza­
tion problems, Sartorious, The Fortunes of Equalization in 
Maryland Since 1920 (Staff Study No. 3). it wTas observed.

“It is well to bear in mind that the educational ad­
vantage of local participation in school support is that 
it frees the vigorous local units to forge ahead in meet­
ing the problems education comes to face with in chang­
ing times. Such local units by their pioneering become 
leaders for the state” (page 9).

The Sartorious Study, by way of introduction, observed:
“New legislation has merely incorporated into this 

(state-local) partnership certain features that were 
inaugurated in the local school systems. That is to 
say that, in the main, improvement in the school sys­
tem has taken place on certain local levels and as the 
idea spread it became part of the total state program. 
This means further that the partnership in respect to 
support has always lagged on the part of the state, but,



77

in fairness, it must be said that it has inevitably fol­
lowed, and it is safe to conclude that it always will” 
(page 1).

From this summary characterization of the history of 
educational progress in Maryland the Sartorious Study 
concluded:

“Equalization demands more than helping the poorer 
local units. It connotes equalization of an adequate 
program, but it certainly does not demand levelling 
down.” (at page 11).

The Sartorious Study expressed concern that the equali­
zation system then in operation in Maryland, while pro­
viding for a high degree of equalization in Maryland rela­
tive to other states, had not given rise to a high degree 
of local effort and that in consequence Maryland ap­
peared to lack bellwether school districts in which new 
improvements might serve as an example for the entire 
state.

This concern was in accord with Professor Mort’s con­
cern for local tax leeway:

“Paul Mort advanced a number of refinements in 
the Strayer-Harg plan with his associates and disciples 
at Columbia University. Among them were * * * 4) local 
tax leeway * * * The concept of local tax leeway pro­
vided for a downward adjustment of the rate of local 
contribution so that almost all districts would receive 
some state aid. Also the local district would have the 
discretionary power to tax itself beyond the local con­
tribution rate in order to purchase its own unique pro­
gram, presumably of a quality beyond the so-called 
state-mandated minimum.” Garvue, Modern Public 
School Finance, (1969), 228-29.

Subsequent changes rapidly ensued. Increases in the 
salary component of the foundation program took place



78

in 1958, 1960, and 1961, increases in the basic aid com-
ponent in 1960 and 1961, and an increase in the building J
incentive component in 1961.

The years following 1964 witnessed an explosion of cre­
ativity in educational finance in Maryland. Four major 
developments took place:

1. In the period 1964-1967, a distinguished state com­
mission, the Maryland Commission on State and County 
Finance, recommended sweeping changes in the financing 
of education and other public services in Maryland,
changes reflected in two major acts of the Maryland legis- Y
lature, Chapter 17 of the Acts of 1964, and Chapter 142 
of the Acts of 1967. By virtue of these changes, Mary­
land became the first state to consider income as well as
property wealth in its state educational equalization for- °
mula, a change of particular benefit to Baltimore City. '
In addition, the state’s first graduated income tax was 
enacted, supplanting a fiat rate tax, and special sub­
ventions to the subdivisions for police services were pro­
vided for including a special lump sum appropriation to t
Baltimore City. This has been described as “a revolu- r
tionary change in support for Maryland schools. A unique s
feature is that per capita income is used as a factor in ,
determination of the relative fiscal capacity of local school 
systems. * * * The elements making up the foundation 
program were raised to levels representing current aver­
age practice throughout the state * * * A  piogram of 
current expense incentive aid was created. A notable 
improvement in this law was its establishment of a fixed 
percentage for the State’s share in the foundation pro­
gram.” Report oj the School Law Revision Commission

(1968), at 29.

2. In 1968, another state commission, the School Law 
Revision Commission, after a study of equalization prob-



of urban

eally deprived environment. Such educational pro­
grams should be designed to compensate for the lack 
of prior appropriate learning experiences and to pro-

.luc I ecummenuauons oi tins uommission were antici­
pated by the Legislature. By Chapter 142 of the Acts of 
1967 the foundation aid program was extended to kinder­
garten children. By Chapter 754 of the Acts of 1969 and 
again by Chapter 4 of the Acts of 1970 a special program 
of “density aid” to Baltimore City created by the 1967 
Act (see the similar suggestion by the Lawyers Commit­
tee for Civil Rights, Compact, April 1972, page 41) was 
enlarged and increased.

3. In 1970, another state commission, the Commission 
to Study the State’s Role in Financing Public Education, 
recommended full state assumption of the costs of public 
school construction. The legislature, acting almost im­
mediately, adopted this recommendation by Chapter 624 
of the Acts of 1971, Maryland thus becoming the first state 
in the nation to fully assume school construction costs. 
In fiscal 1972, appropriations for this program approxi­
mated $150,000,000, raising the state’s share of education 
spending from 31cr to 39C-. The budget estimate for this 
program for fiscal 1973 is approximately $300,000,000, all 
of it to be allocated by a state agency solely on the basis 
of educational need, which will further raise the state 
share of total school spending and will also operate to a 
considerable but as yet undett mined degree to elevate

VE1B M PI



. ■jj.w~rtlr .

80

the level of school spending in poorer counties to a figure 
closer to the state average. The Commission, though split 
on the issue, refrained from recommending full state fund­
ing of current expenses. Its recommendation that the 
state assume 55% of all existing current expenses m the 
several subdivisions, essentially a tax relief rat er an 
equalizing measure, was not adopted, the legislature in­
stead provided for distribution of an added fund of $2 
million to subdivisions on a basis inverse to wea y 
Chapter 4 of the Acts of 1970.

In 1971, another distinguished state commission, the 
Commission on the State Tax Structure under the chair­
manship of Professor Edwin Mills of the Johns Hopkms 
Economics Department considered and rejected proposa s 
for full state funding of education, recommending instead 
a program of general purpose grants akin to revenue­
sharing to subdivisions with large numbers of persons 
below the poverty level. In rejecting full equalization of 
education, the Mills Commission observed:

“Thus the relative burden of taxes in support of a 
particular program is very nearly the same m all jur­
isdiction [under equalization]. The problem with this 
approach is that each jurisdiction is forced to con­
sume exactly the service level decreed by die State. 
Although it may be desirable to force or induce low 
income jurisdictions to consume a higher level of some 
services than they otherwise would, because of the 
State’s interest in those services, it is not so clear that 
it would be desirable to force higher income jurisdic­
tions to consume a lower level of services than they 
would prefer. If educational attainment is a desirable 
thing the State surely doesn’t want to be in the posi­
tion of curtailing it in those jurisdictions that are 
likely to excel. State assumption of a local service is 
desirable only when a very large proportion of the 
benefits of a service are statewide and when most



81

m i counties to a figure 
mission, though split 

m:.ending full state fund- 
•mmendation that the 

g current expenses in the 
;i tax relief rather than 

i .pud. the legislature in- 
t.f an added fund of $22 

eas inverse to wealth by

1 state commission, the 
tructure under the chair- 
■ of the Johns Hopkins 
• d and rejected proposals 
■ i. recommending instead 
i:rants akin to revenue- 
’ c  numbers of persons 

•cling full equalization of 
observed

of taxes in support of a 
’■■•riy the same in all jur- 

'I he problem with this 
diction is forced to con- 

I decreed by the State, 
to force or induce low 

e •' higher level of some 
would, because of the 

t is not so clear that 
e tugher income jurisdic- 

: "f  services than they 
'■••inment is a desirable 

’ to be in the posi- 
• dictions that are 
'> Of a local service is 

proportion of the 
* *de and when most

people desire similar levels of the services. This does 
not appear to be the case for education for example.” 
(at 264).

It is thus clear that plaintiffs’ proposals have not been 
neglected or ignored in Maryland, but rejected on their 
merits by disinterested public bodies.

One further instance of rejection deserves to be noted. 
In 1967, the abortive Maryland Constitutional Convention 
meeting in that j^ear had before it a proposal to fasten on 
the state a rule substantially equivalent to that proposed 
by plaintiffs here. The proposal received extensive dis­
cussion. It was rejected on the floor of the convention 
after it was pointed out that such a provision “would dis­
courage and frustrate local initiative”, and effectively pre­
vent or postpone new initiatives in education. Excerpts 
from the competing reports appear as an appendix to Kur­
land, Equal Educational Opportunity, in Daly (ed.). The 
Quality of Inequality (1968), at 67-72.

Professor Kurland accurately concludes:
“The arguments addressed by the reports * * * are 

certainly relevant to the issue whether the Supreme 
Court should attempt to impose on all of the States 
what the delegates to the Maryland Constitutional 
Convention were unwilling to impose on their own 
state.”

At present, state educational programs are continuing 
to undergo review in Maryland. The Governor’s Educa­
tion Counsel, a former superintendent of schools of one 
of the poorer counties, has opposed on principle full equali­
zation or full state funding. Spigler, Address to the Mary­
land Association of Counties, January 20, 1972. The Gov­
ernor, on June 8, 1972 appointed a new Task Force to 
consider reallocation of the presently available state funds 
in a fashion which “will avoid doing drastic damage to the



school system or taxpayers of any particular jurisdiction” 
and which “will require little, if any, increase in the very 
large sum of money ($343,425,540 in Fiscal Year 1971) that 
the State is already pumping into the local school system.”*

Those advocating equalization at the Montgomery County 
level together with freezing of that county's expenditures 
have conceded that this Rodriguez-type approach would re­
quire additional revenues in Maryland of $200 million per 
year, equal to 3% on the present sales tax base. Wise, 
School Finance Equalization Lawsuits: A Model Legis­
lature Response, 2 Yale Review of Law and Social Action 
at 130, precluding the state legislature for at least three 
years from “begin[ning] to set levels for education in 
competition with its assessment of needs for other public 
services.” Id. at 130.

* Existing disparities in Maryland are of a very modest order, and 
are largely attributable to the escalation of personal income in recent 
years in Montgomery County, the bell-wether subdivision —  an es­
calation due in no small measure to the federal pay comparability 
program, and to the effects of the five-week Montgomery County 
teachers’ strike in 1970. Cost per pupil for current expenses, includ­
ing transportation in 1969-70 was $972.84 in Montgomery Countv. 
In the other 23 subdivisions in the state the range was strikingly 
narrow, from $597.92 in Somerset County on the eastern shore to 
$767.19 in Baltimore County. Selected Financial Data, Maryland 
Public Schools, 1969-70, Part I, Table II. These figures do not take 
into account the new state assumption of school construction which 
heavily benefits the rural counties since state funds are available on 
a need basis. There is no reason to believe that Montgomery Countv 
children are enjoying peculiar benefits. Recent comparative studies of 
educational achievement in the Montgomery County schools indicate 
that children in those schools perform slightly below the national 
average of children of comparable intelligence" on nationwide tests. 
Washington Post, November 23, 1971 Pg. C-l. Indeed, by a number 
of measures, Montgomery County schools are worse off than Somerset 
County schools. 23.3% of Montgomery County teachers have less 
than 2 years’ experience as against 14.7% in Somerset County, 
63% of Montgomery County teachers have more than 5 years’ ex­
perience as against 78.9% of those in Somerset County. Maryland 
State Department of Education, Experience of Teachers and Prin­
cipals, September 1969, Table 1.



ADVERSE EFFECTS ON INTERESTS OF URBAN 
AREAS AND RACIAL MINORITIES

The relief granted by the Rodriguez and Serrano courts, 
far from being the advertised panacea to problems of 
minority and urban education is, as some of its original 
supporters have come to recognize, actually destructive 
of the interests of urban areas and the interests of mi­
nority children.

Nothing makes this clearer than consideration of the 
evidentiary material upon which the Rodriguez court pur­
ported to base its decision. The principal such piece of 
“evidence” was a lengthy narrative affidavit of Joel S. 
Berke of Syracuse University, filed at an extremely late 
stage of the litigation under circumstances which pre­
cluded the state from making effective reply. It has been 
observed of this affidavit that:

“It is true that the three-judge federal district court 
which invalidated the Texas school financing system 
in Rodriguez found that ‘those districts most rich in 
property also have the highest median family income 
and the lowest percentage of minority pupils, while 
the poor property districts are poor in income . . 
The basis for this finding was an affidavit submitted 
by plaintiffs and cited by the court. As a basis for the 
court's conclusion, this was a questionable souice, a 
careful reading of the data contained in the affidavit 
creates grave doubt about the validity of its conclu­
sions * * * The Rodriguez court cited the affidavit as 
showing a median family income of $5,900 in the ten 
districts with the highest tax base per-pupil and $3,325 
in the four districts with the lowest tax base per-pupil 
[337 F. Supp.l at 282 n. 3. The following arc the 
study’s figures:



M a r k e t  V a lu e  
o ]  T a x a b le  

P r o p e r t y  P e r  
P u p il

M  edian  
F a m ily  
In c o m e  

F ro m  
I9 6 0

S ta te  &
P e r  C en t L o ca l  
M in o r ity  R e v en u es  

P u p ils  P e r  P u p il

Above $100,000 
(10 Districts) $5900 8 %  $815

$100,000-$50,000 
(26 Districts) 4425 32 544

$50,000-30,000 
(30 Districts) 4900 23 483

$30,000 $10,000 
(40 Districts) 5050 31 462

Below $10,000 
(4 Districts) 3325 79 305

Affidavit of Joel S. Berke at 6 (footnotes omitted.)

“The five category breakdown of school districts 
seems to be arbitrary, and it is only this breakdown 
which appears to produce the correlation of poor 
school districts and poor people. Event on this br<ea 
down, however, the correlation is doubtful. Note the 
very small number of districts in the top and bottom 
categories. Even more significant is the apparent in­
verse relationship between property value and median 
income in the three middle districts, where 96 of the 
HO districts fall. While the family income differences 
among the three groups of districts are small, they 
S T t e  even more significant if categories are 
weighted by the number of districts in each. At the 
very least, the study does not support the affirmative 
correlation of poor school districts and poor people 
stated by the court and the affiants; this is, however, 
the study the court relied upon, and it is apparen y 
the only study which purports to show such correla­
tion ” Goldstein, In ter -D is tr ic t  In eq u a litie s  in  S ch oo l  
F in a n cin g : A  C ritica l A n a ly s is  o f  S erra n o  v. P r ie s t  and



85

{fsJt:n
l
In .e rn e

} T >»»*
;v on

P e r  C en t  
M in o r ity  

P u p ils

S ta te  &  
L o ca l  

R e v en u es  
P e r  P u p il

$5900 8 % $815

4425 32 544

4900 23 433

5050 31 462

3325 79 305

6 (footnotes omitted.)

-down of school districts 
it is only this breakdown 

the correlation of poor 
■ople. Even on this break- 
lion is doubtful. Note the 
icts in the top and bottom 
lificant is the apparent in­
property value and median 
. districts, where 96 of the 

family income differences 
f districts are small, they 
lificant if categories are 
,f districts in each. At the 
not support the affirmative 

districts and poor people 
,e affiants; this is, however, 
upon, and it is apparently 

oorts to show such correla- 
■trict In eq u a litie s  in  S ch oo l  
l/sis o f  S erra n o  v. P r ie s t  and

Its P r o g e n y . 120 University of Pennsylvania Law Re- 
view 504, 523 and note 67 (1972).

Professor Berke has since pursued his studies of the! ef- 
ecls of the Serrano-Rodriguez rule and has reached CO -  
fusions dramatically at variance with those advanced in 
,r at least suggested by his affidavit in Rodnpuez.

Two monographs prepared by Professor Berke have
lince been published. Select Committee on Equal Educa 
>in 1 „ TT . . a  cf ofpc Senate T h e F inancia ltional Opportunity, United btates senate, ^
Aspects o, Education^ O p p o r t^ p  and ̂
ea u ities  in  S ch ool F in a n ce  (January 1972). lhe secon 
7 these monographs considers the results which would 
obtain in the event that a state adopting the 
rule provided for full state assumption of lie cost, of ed 
cation and equal per-pupil expenditures the costs of this 
program being funded by a proportional income tax. The 
study notes that similar results would obtain if the stale 
educational program where funded from another bro 
based non-progressive tax such as a statewide sales or 
property tax. It need scarcely be labored that the “  °  
least resistance for states confronted with a Rodriguez 
type decision will be movement to a statewide property 
tax. Professor Berke and his colleagues conclude ,n this

study: _ ..
-Despite the widespread enthusiasm that the Cali­

fornia Minnesota and Texas cases have raised through­
out he nation it is our belief that finance reform of 
th e  type just described will not result in removing 
the major inequities in American educational finance 
and on th e  co n tra ry  m a y  w e ll  e x a c e r b a te  th e  p ro  - 
lem s o f  a su bsta n tia l p ro p o r tio n  o f  u rb a n  sch oo ls . T 
results are rather sobering for those concerned about 
the urban financial crises. In th r e e -fo u r th s  o f  th e  
c itie s  in th ese  la rge m etro p o lita n  areas, s ch o o l ta x e s  
Z u l d  r ise  and o f  th e  s ix  e x c e p t io n s  to  th is ten d en c y



th r e e  a re  lo ca ted  in  a s in g le  s ta te , O h io , and in  a fourth 
th e  ta x  ra tes  w o u ld  rem a in  v ir tu a lly  th e  sam e. I h e  
e x p e n d itu r e  im p lica tion s , h o w e v e r , a re  e v e n  m o r e  
ja rrin g . For this aspect of the analysis we have as­
sumed that the local share of revenues assumed by 
the state would be re-distributed on an equal per- 
pupil basis throughout the state. * * N ea r ly  tw ic e  
as m a n y  cen tra l c it ie s  w o u ld  r e c e iv e  lo w e r  e x p e n d i ­
tu r e s  fr o m  th e  s ta tes  u n d er  eq u a l s ta tew id e  p er -p u p il  
d is tr ib u tio n  o f  fu n d s th an  th e y  p r e s e n t ly  r e c e iv e  
u n d er  th e  ex is tin g  r e v e n u e  s tru c tu re . In a number ot 
cases, for example, New York City, the proportion of 
income tax for educational purposes would rise from 
2 57c to 3.1% yet the expenditures from local sources 
that were $694 in the 1970 school year would drop 
under an equal per-pupil statewide re-distnbution of 
the state assumed local share to $636. In shor , no 
only would New York be paying more, under equal 
per-pupil statewide re-distribution, it would be re­
ceiving less. * * * Under our revenue-expenditure 
model, educational resources are being re-distributed 
from large cities to other parts of the state. The rea­
son for this phenomenon lies in the analysis already 
discussed * * * which showed that city tax rates for 
education were lower than in the surrounding areas 
because city tax rates for all governmental functions 
combined were higher than in other parts of metro­
politan areas. The explanation for the expenditure 
effect has also been shown: city educational costs are 
considerably higher than those in other parts of the 
state; and, while expenditures in cities are not as high 
as their added costs and greater educational need re­
quires, they are higher than expenditures in rural 
areas and in some suburban areas. Certainly, c i ty  
sch o o l e x p e n d itu r e s  u su a lly  a re a b o v e  th e  s ta tew id e  
a v era q e  o f  d is tricts , and th u s, c it ie s  lo se  o r  o n ly  b rea k  
e v e n  in  p la n s th a t h a v e  eq u a l p er -p u p il  e x p e n d itu r e s  
th ro u g h o u t th e  s ta te  o r  w h ich  ‘ le v e l-u p ’ to  th e  s ta te  
a v er a g e  To show the impact of our tax-expenditure 
modei on cities and their suburbs, we took a random



87

v. O hio, and in  a fo u r th
■ rt w illy the sam e. T h e  
i-ever , a re e v e n  m o re  
.f analysis we have as- 
' revenues assumed by 
uted on an equal per-
• :e. * * * Nearly twice 
receive lower expendi­
ng statewide per-pupil

th ey  p re sen tly  r e c e iv e  
meture. In ' number of 

City, the \ ^portion of 
lrposes would rise from 
•tires from local sources 
-hnol year would drop 

•.■wide re-distribution of
• to $636. In short, not 
ving more, under equal 
tut ion, it would be re­
ar revenue-expenditure 
are being re-distributed 
ts of the state. The rea-
m the analysis already 

1 that city tax rates for 
t the surrounding areas 
governmental functions 
n other parts of metro- 
on for the expenditure 
t v educational costs are 
e in other parts of the

■ in cities are not as high 
ter educational need re- 
i expenditures in rural 
I areas. Certainly, c i ty  
•:-< chore th e s ta tew id e
■■'dies lose o r  o n ly  b rea k  

■ er-pu p il e x p e n d itu r e s  
n 'lev e l-u p ’ to th e  s ta te  
of our tax-expenditure 

:rhs, we took a random

selection of thirteen of the 37 largest metropolitan 
areas, and looked at a large central city and its county.
* * * In six of the eight large cities in the Northeast 
and Midwest, suburban taxes would rise under state 
assumption, but the rise would be markedly less than 
in the cities in most cases. Both areas would be re­
distributing to non-metropolitan areas or to the least 
urbanized portions of metropolitan areas. In the South 
the tax impact of statewide assumption would permit 
the suburban counties in both metropolitan areas to 
reduce tax effort for education, while the cities would 
get either a lesser degree of tax relief or none at all. 
In the West, all three cities would have their tax effort 
increased, while that would be the case for only one 
suburban county. Table XV I shows the compaiative 
central city-suburban expenditure results. * * * After 
equal per-pupil distribution of the state assumed local 
share, the third column shows the new statewide ex­
penditure levels from what were formally local rev­
enues. Only two of the eight Northeastern and Mid­
western cities gain, while only one suburb does, and 
the rates by which the suburbs exceed the state aver­
age are substantially higher than in the cities.” Id. at 
66-69. (Emphasis added).

The Berke stud., contains (at 67) a detailed table which 
is instructive, and which is set out below.



T able  XIV. —  T a x  e ffo rt and exp en d itu res  
assum ption and equal p er pupil

•------- - Percent of income taxed
for school purposes

1970

Under
State

assump­
tion

im plication u nder S tate  
distribution

Local expenditures per pupil

Statewide 
equal 

expendi- 
1970 turns

Local 
expenditures 

under 
statewide 
tax ratal

Northeast:
Baltimore, Md................—
Boston, Mass...........- ..... -
Newark, N.J.................—
Paterson-Clifton-

Passaic, N.J--------------
Buffalo, N.Y. — ------
New York City, N.Y. —
Rochester, N .Y ..............—
Philadelphia, Pa..............
Pittsburgh, Pa. —......—
Providence, R.I. ---------

Midwest:
Chicapi' 111. ----------------
Indianapolis, Ind..............
Detroit, Mich. -------------
Minneapolis-St.

Paul, Minn. -------------
Kansas City, Mo. ---------
St. Louis, Mo. ---- --------
Cincinnati, Ohio ---------
Cleveland, Ohio .............
Columbus, Ohio, ---------
Dayton, Ohio ---------------
Milwaukee, Wis. ---------

South:
Miami, Fla. (Dade

County) -------------------
Tampa-St. Petersburg,

Fla. _____ _____
Atlanta, Ga. ----------------
Louisville, Ky. ------------
New Orleans, La. --------
Dallas, T ex----- --------------
Houston, T ex........ ..........
San Antonio, Tex...... —

3.4
2.5
3.4

( 2)
1.6
2.5
3.0
2.0
2.5 
2.9

3.7 
3.6
3.8

$444
522
587

$538
632
707

$486
741
648

3.8
3.1
3.1
3.1
2.7
2.7
2.8

( 2 )
347
694
697
444
596
701

707
636
636
636
446
446
477

797
662
863
727
593
650
678

1.4
2.4
2.1

2.3 
(2)
2.7
4.6
4.8 
3.0
3.7
3.4

3.3 
2.8 
2.9

3.3
3.0
3.0
3.4
3.4
3.4
3.4 
4.3

307
415
439

582

677
749
479
632
599

600
377
396

429
408
408
490
490
490
490
573

754
495
589

835
428
469
499
530
546
568
708

1.6

1.3
2.4 
1.6
1.5

1.8 287

1.8 222
1.5 395
1.6 341
1.9 261
2.2 (2)
2.2 ( 2 )
2.2 ( 2 )

383 324

383 315
175 350
191 343
212 325
275 409
275 364
275 259

West:
Los Angeles-Long

Beach, Calif----- -------
San Bernardino, River­

side, Ontario, Calif. -
San Diego, Calif. -------
San Fraud sco-

Oakland, Calif. -------
Denver, C o l o . ......... ....
Portland, Oreg. --------

Seattle-Evcrett,
Wash-------- ---------------

_ 2.9 (2) 433 531

— 2.9
2.9

(2)
(2)

433
433

403
423

2.5 2.9 709 435 817
3 ^ 4.3 667 507 864
2.3 2.0 442 672 980

1.7 2.3 436 328 608

1 Local revenues tint 
the revenues raised by

2 Nut compiled.

t would be 
those rates

nerated If the statewide rates were 
■ere retained tor local expenditure.

applied but



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68



90

Professor Berko and his colleagues are net alone în these 
•nrlimrs The study conducted by the United Stages U 
ee of Education, Finances of Lanje City School Systen.s: A 

Comparative Analysis (DHEW Publication S a O H H  
,972 conducted an even more extensive survey of the 
‘ fleets on large cities. The study found " ‘een out
of twenty-five representative large ci y sixteen
had above average assessed valuations, and that sixtc 
“  of twenty-hve also had average or below average tax
rates for education.

That study also found that if all school systems in the 
respective states collected all presently collected loca 
funds for education and re-distributed them on a equa 
funds per-pupil basis, only 29 of the 84 urban scho • ys- 
tems studied would receive more funds. If the d.s nbu 
tion were made not on a equal dollars per-pupl bast, but 
on an equalisation basis rewarding areas With low prop 
erty values, the results for the large cities would hav 
been even more disastrous.

Indeed, one cannot view without wonder the extent to 
which ideology has triumphed over good sense in the 
work of some of the defenders of the Rodriguez doctrinê  
An especially spectacular example of this tendency 1 

found in the recommendations of the Report of the New 
York State Commission on the Quality Costs an < inan 
ing of Elementary and Secondary Education, That Com­
mission recommended a shift from the present mode of 
financin', to a regime in which state property taxes would 
supply all educational funds, the funds to be re-d.stributed 
orCa per-pupil basis modified by factors designed to chan­
nel more funds to large cities. Under its recommendations

a ur 
wou 
tax 
$1.4 
and 
woi 
sivi 
rcc 
no’ 
foi 
in 
$2

th
h:
of
d
li



agues.are not alone in tlie.se 
d by the United States Ch­
arge City School Systems: A 
A’ Publication No. OE72-29 
re extensive survey of the 
udy found that sixteen out 
large city school systems 

valuations, and that sixteen 
erage or below average tax

if all school systems in the 
1 presently collected local 
istributed them on a equal 
of the 84 urban school sys- 
lore funds. If the distribu- 
1 dollars per-pupil basis but 
rding areas with low prop- 
he large cities would have

•hout wonder the extent to 
•d over good sense in the 

of the Rodriguez doctrine, 
ample of this tendency is 
* the Report of the New 
- Quality Costs and Financ- 
lary Education. That Com- 
from the present mode of 
state property taxes would 

ie funds to be re-distributed 
v factors designed to chan- 
bnder its recommendations

a uniform state property tax of $2.04 per hundred dollars 
would be imposed for educational purposes. The present 
tax rate in New York City for education is $1.89, in Buffalo 
$1.44, in Albany $1.77, in Syracuse $1.66, in Rochester $1.72 
and in Yonkers $1.74. The “big six” cities in New York 
would be presented by this “reform” measure with mas­
sive increases in property taxes. By contrast, sweeping 
reductions would be mandated for those suburban areas 
now making high tax efforts on education. The tax effort 
for education in Scarsdale would drop from $2.58 to $2.04, 
in Hempstead from $2.61 to $2.04, in New Rochelle from 
$2.49 to $2.04 and so on. Id. at p. 2.33.*

Against this background it is scarcely a source of wonder 
that disenchantment with the Serrano-Rodriguez doctrine 
has set in. Thus, William L. Taylor, former staff director 
of the United States Civil Rights Commission and now 
director of the Center for National Policy Review, Catho­
lic University Law School has testified:

“In the first place, it is being discovered rather 
belatedly that in some areas there is no correlation 
between the property wealth of an area and the wealth 
of families who reside there. This means that in New 
York City which has a good tax base and many poor 
families, poor and minority children would be hurt —  
not helped —  by an application of the Serrano princi­
ple re-distributing property wealth for school financ­
ing purposes. Second, the Serrano decision points not 
toward a system of financing based on educational 
need —  which is what poor children really require —  
or even to equal expenditures, but simply to equal­
izing the property tax base. Third, even in the best

* Sec the critical lead editorial in the New York Times for January 
29, 1972, and see Under, C ity  T a x  R ise  L inked  to F lc isc lm a n n  P r o ­
posals and Maeroff, Suburban S ch oo l Officials P ear E ffe c t  o f a F reeze  
on S pending . New York Times, February 2, 1972 at 47.



92

ot circumstances, there is no

differ“  w S c f s i g " dliTerencM in educational

expenditure alone will F  ̂ ucc d* erately need.”
higher quality teaching they . n472)
(Mondale Committee Hearings page 10472).

The kindest thing that Mr Taylor could

iy about the . f i t — s env

for'refusing to provide shelter for poor and minority 
tmilies from thcentral city,” surely a minor and remo 

onsequence.
Mr Norman J. Chachkin of the NAACP Legal De- 

ense and Educational Fund, a supporter of metropolitam- 
;ation of school districts, has observed:

“Some of the schemes proposed in the wake of the 
California decision^could
ailments Ma" ^ C ° °  ^  money under a revised aid 
districts —  couia get TVip failure of the Serrano
scheme than tlrey tgot no  ̂ Th jd the McInnis

litigants a n d X ‘ng educational need, to propose ac- 
S S  r " s " f u t :  the burden on state l e g i s , ^ .

1 would nut be surprised if many respond by abohsh- 
,, flat errant minimum foundation and all cate

on a statewide basis, and then distributing toi the e ™  -

fhe education of minority and disadvantaged children 
w  T wonder how such a restricted revenue base might 
affecta°school

age'teachers’ sauries.” (Mondale Committee Hearings, 
at 10905.)



93

; persuasive evidence that 
—  unless they are mas- 

did’erences in educational 
ematical that increases in 
uce for poor children the 
ey so desperately need.” 
ngs page 10472).

l'aylor could think of to 
ie was that “it will strip 
uburban communities em- 
ter for poor and minority 
urely a minor and remote

the NAACP Legal De- 
ipporter of metropolitani- 
scrved:
posed in the wake of the 
vo the cure worse than the 
cts — particularly urban 
(>ney under a revised aid 
' be failure of the Serrano 
aste to avoid the Mclnnis 
■nal need, to propose ac- 
den on state legislatures, 

many respond by abolish- 
foundation and all cate- 
ing effective assessment 
a uniform property tax 

• distributing to the exist- 
■ en a equal dollars per- 

l)e extremely bad for 
1 disadvantaged children, 

i d revenue base might 
‘b in 'he past negotiated 

for higher than aver- 
“ :-l‘ Committee Hearings,

To similar effect see Myers, Second Thoughts on the 
Serrano Case, City: The Magazine of the National Urban 
Coalition, Volume V, Number 6 < Winter 1971), at page 38; 
Bassett, Leaders of Urban Schools Oppose Dollar-A-Scholar, 
Baltimore News-American, March 16, 1972, page 1, column 
4; Goldstein, supra, 120 University of Pennsylvania Law 
Review 504, 526 <1972).

Nor is the probable detrim nt to large cities resulting 
from the Rodriguez rule a function of the fact that the rule 
applies only to property tax bases:

“An equalization principle that operated beyond the 
sphere of property tax base wealth could work against 
the cities in another area. Local non-property taxes, 
though limited in significance to a few states * * * may 
also disproportionately favor urban centers. In a study 
of Alabama, Kentucky, Louisiana, Maryland, New 
York, Pennsylvania and Tennessee for 1968-1969, school 
districts were classified into central city, suburban, in­
dependent city and rural districts. It was found that in 
five of the seven states * * * the rural districts re­
ceived the least amount of revenue per-pupil from 
such local non-property taxes; in four of the seven 
states * * * the central city districts received the most 
revenue per-pupil. The average ranking for the seven 
states showed that the central city school districts on 
the average received the most revenue per-pupil from 
local non-property taxes, followed in order by subur­
ban, independent city, and rural districts. Alternative 
Programs for Financing Education 186-187 (1971) 
(National Educational Finance Project, Volume V ). 
Goldstein, supra, at 526 note 73.

Not only will large cities not benefit from Rodriguez but 
it has also been established that minority groups will not 
benefit from the Rodriguez rule. Though the United States 
Civil Rights Commission has claimed that some moderate 
benefit would accrue to Mexican-American children in



94

Texas, its studies of the school systems of California, Ari- _~-
zona, New Mexico and Colorado, conspicuously failed to ° ri
find any detriment to Mexican-Americans from operation
of the existing system of school finance. Similarly, Coons, 7
Clune and Sugarman, A First Appraisal of Serrano, 2 Yale Roc
Review of Law and Social Action 103, 120 note 37, observe: sug

“The racial district wealth pattern may be other than bet
intuition might suggest. In California, over half the in
minority pupils reside in districts above the average dol
in assessed valuation per pupil.” acc

Professor Coons and his colleagues have noted:
“If racial discrimination were measured by the per- ^

ccntage of all minority students who reside in dis­
tricts below the statewide median average valuation
per-pupil, California would manifest inverse discrimi- la-
nation. 5971 (683,919) of minority students live in th
districts above the median average valuation per- su
pupil. The percentage is considerably higher for Ne- p,
groes; Indians and those with Spanish surnames are g£
nearly evenly divided above and below the median.
The minority figures were taken from an unpublished 
survey for the State Department of Education by F. R.
Gunsky, ‘Racial and Ethnic Distribution of Public E
School Pupils, District Report, October 1968.’ The aver- L
age valuations per-pupil are from California Public 
Schools Selected Statistics, 1967-68 (Sacramento).”
Coons, Clune and Sugarman, Private Wealth and Public u
Education at 356 note 47. e

e
The disenchantment of large cities with the Serrano rule s

is dramatized by the case of San Francisco which initially j
filed an Amicus Curiae Brief in support of the plaintiffs in t
Serrano, see Myers, supra. More recently, we are told, “San 
Francisco has joined several of the small wealthy districts 
to organize a lobby ( ‘Schools for Sound Finance’ ) to fight 
any limits on local expendt .ires” in connection with the



systems of California, Ari- 
lu, conspicuously failed to 
Americans from operation 

i finance. Similarly, Coons, 
1 ppraisal of Serrano, 2 Yale 
n 108, 120 note 37, observe:

h pattern may be other than 
:I California, over half the 

-Uriels above the average 
ipil."

agues have oted:
were measu ed by the per- 
udents who reside in dis- 
inedian average valuation 
manifest inverse discrimi- 
minority students live in 
n average valuation per- 
onsiderably higher for Ne- 
- h Spanish surnames are 
* c‘ ar>d below the median, 
'aken from an unpublished 
ment of Education by F. R. 
uc Distribution of Public 
rt, October 1968.’ The aver- 
re from California Public 

1967-68 (Sacramento).” 
Private Wealth and Public

.'ies with the Serrano rule 
i 1 i uncisco which initially 
support of the plaintiffs in 
recently, we are told, “San 

-■mall wealthy districts 
' Sound Finance’ ) to fight 

in connection with the

95

legislative consideration of school finance revisions in Cali­
fornia. Anderson, Financing Schools: Search for Reform, 
Washington Post, May 31, 1972.

The obvious detriment to large cities inherent in the 
Rodriguez rule has driven apologists for the formula to 
suggest ever more desperate rationalizations. Thus, it has 
been suggested that the detriment to large cities might be 
in part mitigated by adopting a rule requiring not equal 
dollar spending but equal facilities, thus partially taking 
account of higher city costs. But the almost total unjustici­
ability and unenforceability of such a rule, which invariably 
draws the court into comparison of apples and oranges 
should be apparent. Other commentators have suggested 
that the solution is to be found in some formula, legis­
latively rather than judicially adopted, taking account of 
the factor of municipal overburden. The difficulty with 
such a suggestion is that “the National Educational Finance 
Project reached a different conclusion after analysis of a 
sample of school districts from eight states: ‘no persuasive 
evidence of the existence of municipal overburden was un­
covered.’ Johns, et al., Alternative Programs of Financing 
Education 98 (1971).” Dimond, supra, 2 Yale Review of 
Law and Social Action 140, note 38 (1971).

Finally, there have been suggestions that although an 
unmodified Rodriguez rule may be detrimental to cities, the 
effect of Rodriguez type decisions is to induce states to re­
examine their systems of school finance; it is inferred that 
such a re-examination can only result in benefit to cities. 
However, the history of recent and frequent amendments 
to state school finance formulas makes clear they have un­
dergone continuous re-examination. As recently pointed 
out “equal statewide financing will take more money out 
of the central cities than it will give to them. * * * Under



the Texas decision a state could theoretically choose to 
appropriate extra funds to deprived urban children. Bu 
it would be very difficult for the cities to get those appro­
priations through any legislature, as a matter of practical 
politics, in a period in which other wealthy districts weie 
being held down.” Editorial, The Washington Post, May

31, 1972.
Indeed, the most dramatic illustration of what the Rodri­

guez principle may mean in practice is supplied by the 
experience in New Jersey where, in pursuit of the wil o 
the wisp of abstract numerical equalization m favor o 
small rural districts not really needing additional funds, a 
state court judge invalidated a new and progressive piece 
of reform legislation, the Bateman Act, which specifically 
addressed the problems of large cities by allocating avail­
able funds in heavy proportion to districts with large num­
bers of AFDC recipients.

There is no way a constitutional rule can leadily take 
account of these problems. It has been demonstrated that 
the Rodriguez rule in general, would operate to the severe 
detriment of urban districts.

“A decision by the United States Supreme Court 
attempting to differentiate among the states, would be 
entirely inappropriate. It would be most unwise to 
have basically similar state systems held invalid or 
valid depending on where the state’s poor llvGd> ° r 
more accurately, depending on judges views of the 
difficult statistical analysis demonstrating a correla­
tion between poor people and poor school districts. 
Goldstein, supra, at 525.*

* Professor Goldstein also accurately observes : “ Whatever cor­
relation there is between the percentage of minority people.andthe 
tax base wealth of a school district in Texas may refkcl; „ru
nature of Texas minority life or some other state peculiarity. /  ■
at 525 note 71.



eoretically choose to 
urban children. But 
s to get those appro- 
a matter of practical 
ealthy districts were 
ashington Post, May

m of what the Rodri- 
* is supplied by the 
nirsuit of the will of 
lization in favor of 

g additional funds, a 
nd progress' e piece 
t, which specifically 
by allocating avail- 

icts with large num-

de can readily take 
t demonstrated that 
perate to the severe

tes Supreme Court 
the states, would be 
be most unwise to 
ms held invalid or 
ite’s poor lived, or 
idges’ views of the 
istrating a correla- 
>r school districts.”

rves.- “ Whatever cor- 
mority people and the 
day reflect the rural 

uate peculiarity." Jd.

97

Even if it is assumed that the changes adopted by state 
legislatures following invalidation of existing formulas 
gave some weight to problems of the cities, the net result 
would still be grave detriment to the long term interests 
of the deprived residents of cities. This is so because even 
the most sanguine exponents of the Rodriguez rule ac­
knowledge that vast additional appropriations for educa­
tion would be necessary to elevate districts to the level of 
the higher districts in each state and that the larger part 
of such appropriations would be channeled to districts 
without particularly pressing educational problems. What­
ever marginal benefits might accrue to large cities from 
changes in educational spending patterns viewed alone 
would be more than offset by the waste of society’s total 
resources and the detriment in the capacity of govern­
ment to address other problems such as the urban unem­
ployment which the Coleman Report and its defenders 
view as the gravest detriment to the educational and 
other interests of urban children. Thus, even one of the 
proponents of the Rodriguez principle, Professor Charles 
S. Benson has observed:

“Assuming compliance with the dictum of Serrano 
v. Priest that wealth not influence quality of education 
within the states, one is led to the conclusion that state 
governments must allocate additional revenues to the 
public schools simply to establish such compliance. To 
remove the influence of wealth on education requires 
that expenditures in the large number of low wealth —  
low expenditure districts be brought up to accepta­
ble standards. This can only be done by injecting 
money from a higher level of government into those 
districts. (No one can imagine that states could obtain 
compliance with Serrano v. Priest by forcing high 
wealth, high expenditure districts to reduce their ex­
penditures sharply, one reason being that most of these 
expenditures are contractual in nature.) My concern



98

is that state governments which are obliged to raise 
their education budget for this purpose of compliance 
will slight other social welfare activities, such as 
health, low cost housing, and the more developmental 
types of welfare accounts. There is strong reason to 
believe that performance of schools with respect to 
disadvant ,red youth is itself extremely sensitive to 
thes- very kinds of expenditures that might suffer as 
states move toward compliance with Serrano. This 
would subvert whatever equalitarian purpose exists in 
Serrano * * I Mondale Committee Hearings at 
7669).

Similar concerns underlie the conclusion of a recent 
careful study of the history of state educational finance 
formulas:

“Improving the condition of large city school sys­
tems can best be attained by a pinpointed federal 
program that will deal with financing needs of the 
large cities and other areas containing the concentra­
tions of poverty which are so costly to local govern­
ments, both in the educational and non-educational 
spheres. The financial requirements of suburban and 
rural school systems can be most adequately dealt 
with by the system of state and local finance which 
has been able to provide such large sums of money 
since the end of World War II. Large cities, on the 
other hand, present problems which are very differ­
ent and probably can be dealt with only on a national 
scale with a national resource base.’’ Sacks, City 
Schools, Suburban Schools: A History of Fiscal Con­
flict (1972) at 177.*

* Indeed, the limited federal and state programs focused on de­
prived urban areas are said to have already placed city high schools 
with large numbers of low-income children on a much better than 
average material footing. See Havighurst, et al. A  P rofi le  o j  the  
L a r g e - C i t y  H ig h  S ch oo l , National Association of Secondary School 
Principals. November 1970, quoted at Hosteller and Movnihan, On 
E q u a l i ty  o f  E d u ca tio n a l O p p o r tu n ity  (1972), pg. 11.



99

h are obliged to raise 
purpose of compliance 
e activities, such as 
■ more developmental 

re is strong reason to 
Pools with respect to 
xtremely sensitive to 
s that might suffer as 

with Sei’rano. This 
irian purpose exists in 
mmittee Hearings at

inclusion of a recent 
e educational finance

arge city school sys- 
a pinpointed federal 
■.ancing needs of the 
.lining the concentra- 
'stly to ]■• cal govern- 
and non-educational 
nis of suburban and 
<st adequately dealt 
local finance which 

■ rge sums of money 
Large cities, on the 

uich are very differ- 
’ b only on a national 

base." Sacks, City 
lst°nj of Fiscal Cov-

' ’"ranis focused on de- 
I'fiicd city high schools 

:i "inch better than 
ct nl- P rofile  o f  the  
■' "i -Secondary School 
“ r and Movnihan, O n  
■ PJf. 11.

Plaintiffs, though claiming to represent all parents, chil­
dren and taxpayers in their state, seek a rule profoundly 
destructive of their political rights. As to the rural dis­
tricts in Texas and elsewhere in the country, local budg­
etary' control over educational expenditures and a tradi­
tion ol close accountability of school officials would be 
ended. As to urban areas, a process of political evolution 
which over the course of a century has given varying 
racial and ethnic groups, in Texas and in the large cities 
of the East and Midwest, a voice in fiscal control of their 
educational systems would be brought to an end and 
further sh ‘ ts in influence over City educational policy' 
precluded.

Finally, it has further been noted that “the variations 
in school expenditures per pupil, throughout the country, 
are mainly due to the differences in teachers’ salary scales. 
The high salary scales are commonly protected by formal 
contracts between school boards and teachers’ organiza­
tions. As a practical matter, in view of the political 
strength of the teachers’ organizations, it is idle to sup­
pose that salaries in the high-cost school systems can be 
cut or, following one proposal, can be frozen over a period 
of years wiiile other systems gradually catch up. The al­
ternative would be to equalize costs by increasing class 
sizes in high-budget areas. Here again the effects would 
be sharpest in the central cities, where the need for low 
pupil-teacher ratios is greatest.” Editorial, The Washing­
ton Post, May 31, 1972.

COSTS OF THE RELIEF SOUGHT
The relief sought by Plaintiffs will result in staggering 

costs to already heavily burdened state governments. The 
President’s Commission on School Finance estimated the 
cost of elevating all school districts to the level of the



100

ninetieth percentile in each state at 6.2 billion dollars and 
the cost of elevating all school districts to the nmetyfi 
percentile in each state at 8.8 billion dollars. Since the 
larger part of school budgets consists of conlraclua y 
obligated .terns such as teachers' salaries, bonds contr et 
for pupil transportation and the like, it is unlikely that as 
a practical matter any state would find Poss.b e o 
equalize at less than the ninety-fifth percent.]le See the 
summary of the findings at Notion's Schools, May . . 
page 8 and see Staff Report. President's Commission ... 
School Finance, Review of Existing State School F, nance 
Programs. These additional outlays are, of course, in a 
dition to the rapidly rising ordinary level of expendnures 
with which state governments must keep abreas.. T 
rate of increase in educational expenditures in recent 
years has far outstripped the rate of inflation and the rate 
of growth of the revc ,.e resources of state governmen . 
Thus, on a national basis, taxation and appropriation fo 
public school systems increased by 67.4% between 1957-58 
and 1963-64, see Advisory Commission on Intel-Govt 
mental Relations, State Aid to Local Government ( 9691 
at 56 (Mondale Committee Hearings at 8480b Similarly, 
state and local revenue receipts from own sources or 
public schools as a percentage of state persona! income 
Increased from 3.1% in 1957-53 to 4.6% in 1967-68. Id. The 
increasing militancy of teachers’ unions suggests that this 
burden upon state governments is likely, if anything, o 
accelerate in its dimensions in the next several years. 
The present suits would saddle the states with the re­
sponsibility not merely of keeping abreast of ordinary 
demands for ever-increasing revenues, but also of finding 
the vast additional sums mentioned. Just how a bin den 
o 6.2 billion or 8.8 billion dollars per year upon the hard 
pressed state governments can be described as anything



101

2 billion dollars and 
s to the ninety-fifth 
dollars. Since the 

ts of contractually 
,es, bonds, contracts 
t is unlikely that ; 
find it possible tu 
percentile. See the 
Schools, May 1972, 
it’s Commission on 
ate School Finance 
e, of course, in ad- 
cel of expenditures 
keep abreast. The 
nditures in recent 
llation and the rate 
state governments.
1 appropriation for 
''< between 1957-53 

on Inter-Govern- 
overnment (1969) 
3480). Similarly, 
own sources for 

-■ personal income 
n 1967-63. Id. The 
suggests that this 

!y, if anything, to 
xt several years, 
ates with the re­
roast of ordinary 
mt also of finding 
(st how a burden 
or upon the hard 
ibed as anything

other than over helming is difficult to discern, given the 
fact that the pending revenue-sharing bill over which 
there has been so much travail will give state and local 
governments together only 5 billion dollars per year or 
roughly 5/ 9thx of the added burden which plaintiffs here 
would thrust upon them in a period of rising public de­
mand for other governmental functions.

Some inkling of the burden which would be imposed 
upon particular states may be gleaned by comparing the 
sums necessary to raise school expenditures in given 
states to the ninetieth percentile now prevailing in those 
states with the revenues which would be generated from 
a 1% percent increase in existing sales taxes. The com­
parison for the eighteen states which would be most 
heavily burdened in absolute terms by the Rodriguez rule 
is as follows:



R e v e n u e s  p er  1 %  o f  S o le s  
T u x  R u le , P r e s e n t  T a x e s ,  
19 69  (R a t io n a l  E d u ca ­
tion a l P r o j e c t ,  P o l .  2 , pp. 

3 0 / -0 8 ) .

T o ta l  E x p en d itu r e s  to  R a is e  
to  90th  P e r c e n t i l e  ( P r e s i ­
d en t's  C o m m iss io n  on S c h o o l  
P i n a n c e )  C om pact, s lp r i l  

1972, pri. 23

effi
ad(
mo
nel
ant
if

California $421,000,000 $731,200,000

Connecticut 50,000,000 126.800.000

Florida 143,000.000 117,200.000
WO

Georgia 103.000.000 162,600,000
ore

Illinois 234,000,000 401,600,000
of

Indiana 100,000,000 112,900,000

Maryland 66,000,000 175,200.000 3

Massachusetts 53,000,000 236,000.000 im]

Michigan 199,000,000 326,600.000 tot:

Minnesota 58,000,000 107,200.000
Missouri 99,000,000 107,100.000

New Jersey 88,000,000 285,600,000

New York 350,000,000 537,700,000

Ohio 155,000,000 471,800.000
Pennsylvania 148,000,000 456.800,000

Texas 179,000,000 263.400,000

Virginia 70,000,000 130,800,000
Washington 94,000,000 107.800,000
U.S. as whole $3,790,000,000 $6,200,000,000 (est.)

Similar comparisons with respect to income and property
taxes may be made by recourse to the figures contained in 
the study of the National Educational Finance Project 
above cited. It is clear that the order of magnitude of the 
increases which will be required will be such as to totally 
preempt for a number of years one or more of the prin­
cipal revenue sources in almost every state in the union 
and to render impractical tax increases or substantial bud­
get increases for any other public purpose.

As elsewhere noted in this memorandum, no particularly 
useful public purpose would be served by this massive



103
E x p en d itu r e s  to  R a ise  
th f 'e r c c n t i lc  ( P r c s i -  

• : , I 'tw iw iss io n  n il S ch o o l  
. n . i n c c l  C om pact, A p r i l  

J o ?2 . pci. 25

effort. In Maryland, for example, less than Cith of the total 
additional funds necessary would go to the City of Balti­
more; the overwhelming proportion of it would be chan­

8731.200,000
126.800.000
117.200.000
162.600.000
401.600.000
112.900.000
175.200.000 
236.000.000
326.600.000
107.200.000
107.100.000 
285,600,(. 
537,700,0cu
471.800.000
456.800.000
263.400.000
130.800.000
107.800.000 

0.200.000.000 fest.)

nelled to rural districts lacking pressing educational needs 
and the same is ti ue elsewhere in the country. The chief, 
lf not lhe o n l -v ’ beneficiaries of this massive disruption 
would be teachers’ organizations which would swiftly 
organize on the state level to obtain the maximum portion 
of the newly appropriated revenues.

The interference with state and local budgeting which 
imposition of the Rodriguez rule would produce would be 
total. As Professor Coons and his colleagues have noted:

c .The ad°Pj10n of a power equalized school district 
. jstem would have analogous but more complex effects 
on other public services. * * * Power equalizing would 
a ter the price of education for nearly all districts and 

le interdependencies of local services would assert 
themselves in contrasting ways. That is, this all would 
happen unless the state either mandated or assumed 
the cost of other services beside education. In fact 
here ai e  certain to be pressures toward such compre­

hensive fiscal neutrality. The Serrano idea will in­
crease sensitivity to abuses in respect to other public

come and property 
lures contained in 

1 inance Project 
magnitude of the 
such as to totally 
nore of the prin- 
■'to in the union 
substantial bud-

services which have been long endured because of their 
apparent inevitablity; this dissatisfaction will be fur­
ther stimulated by economists and politicians, some of 
whom wiil promote full state assumption of all services

A c Z Z u V m m 7 2 K aleR e v i e w  ° f  L a w  W ld  S o c ia l

Professor Dimond has similarly noted:

m no particularly 
b.v this massive

“I have not the vaguest notion of what the effect of 
fiscal neutrality m school finance alone will be on other 
public taxing and spending and private consumption 
and saving. I only know that Coons, et al„ bear a hmh

" .........  ...................... ..............................................T — * ..................... ................—



burden of proof that it is possible to tinker with ‘just’ 
the public school finance scheme. 1 suspect that re­
quiring reform of public school finance systems will 
have a considerable impact on the patterns of all other 
public and private sys ems of raising and spending 
money. Those disinclined by philosophy to judicial 
intervention will be immensely troubled by that spec­
ter, and especially by its unknown contours.”

Professor Yudof and Kirp have likewise noted:
“The Serrano decision does of course have an im­

pact on the legislature’s capacity to set fiscal policy. 
If the legislature is prodded by a Serrano like suit to 
increase state education appropriations (a likely re­
sponse), then the state will be obliged either to in­
crease state taxing, or to cut back some other state 
supported program. Serrano, to put the point differ­
ently, imposes constraints on the legislatures’ ability to 
trade off expenditures on public goods.” 2 Yale Journal 
of Law and Social Action at 147, note 4.

Nor is there any reason to believe that the principles of 
Rodriguez will be limited in their impact to state programs. 
Rather it is clear that every federal matching program will 
be potentially jeopardized by the decision, since almost by 
definition the ability of states to put up state funds to be 
matched is a function in some measure of their wealth.

It should be noted that this spelling out of the potential 
implications of Rodriguez is not a parade of horribles de­
vised by counsel opposing application of that decision; it 
comes from the lips of the proponents of the doctrine 
themselves.

See also Schoettle, The Equal Protection Clause in Public 
Education, 71 Columbia Law Review 1355 (1971), noting 
the potential implications for the total budgeting process.



105

e to tinker with ‘just’ 
c. I suspect that re­
finance systems will 

: patterns of all other 
raising and spending 
hilosophy to judicial 
roubled by that spec- 
n contours.”

iwise noted:
course have an im- 

• to set fiscal pr'bcy. 
i Serrano like suit to 
iations (a likely re- 
obliged either to in- 
ck soine other state 
put the point differ- 
egislatures’ ability to 
•ods.” 2 Yale Journal 
note 4.

hat the principles of 
ct to s ate programs, 
itching program will 
don, since almost by 
up state funds to be 
e of their wealth.

out of the potential 
ade of horribles de­
ed that decision; it 

nts of the doctrine

ion Clause in Public 
1355 (1971), noting 

budgeting process.

There is indeed no reason to believe that these oppor­
tunities will not be eagerly pursued once the door is open to 
lawsuits of this character attacking state and federal tax­
ing and spending programs. We have been told:

“Serrano ‘opens a very large door’ says John Silard, 
a Washington, D.C., attorney involved in school tax 
litigation. For the first time, he says, the courts are 
requiring ‘equal protection’ in public programs. They 
are holding states accountable for how and where they 
spend public money. In his view, this means ‘a revolu­
tion in public services’, the schools, he predicts, are 
merely ‘the fir. . bite at the big apple. Welfare wi- 
ously comes next, and I guess health too.’ * * * Some 
lawyers predict that if education is accepted as a fun­
damental interest, other public services are bound to 
follow. But they don’t like to say it out loud. ‘They 
want this to stick’, one attorney says. ‘You stress tli. t 
education isn’t like garbage. We a. playing a game 
here. You have to ( in order) not to frighten the courts 
away from a proposition that’s sound’.” Andrews, Tax 
‘Revolution’, Wall Street Journal, March 13. 1972. 
pages 1, 12.

The offer bve inseparability and indistinguishability of 
education from other services was noted by Judge Harvey 
in his decision in Parker v. Mandeb which repeatedly refers 
to “healt: education and welfare” in declining to apply the 
Serrano-Rodriguez doctrine.

It will be recalled that the California Supreme Court felt 
obligated to issue a supplemental opinion when it was dis­
covered that its initial edict was having an adverse effect 
upon state property tax collections. With the doctrine that 
plaintiffs propose the legitimacy of virtually all state taxa­
tion will be cast in peril in the eyes of many members of 
the public and the eyes also of at least the more exuberant 
members of the lower federal judiciary. Professors Coons,



Clune and Sugarman have gleefully pointed to the factors 
which they hope will induce legislative acquiescence in 
their favored doctrine:

“A  prolonged period of turmoil and doubt in which 
aid formulas, validity of tax impositions, validity of 
bonds ani retroactivity remain locked in a political 
struggle.” 2 Yale Review of Law and Social Action 
at 118.

Surely, whatever their applicability in their original con­
text, 1' re is merit in this new context in the cautionary 
words of Judge Learned Hand on the duty of deference to 
the decisions of legislatures:

“These men [Justices Holmes and Cardozo] believed 
that democracy was a political contrivance by which 
the group conflicts inevitable in all society should find 
a relatively harmless outlet in the give and take of 
legislative compromise after the contending groups 
had had a chance to measure their relative strength; 
and through which the bitterest animosities might at 
least be assuaged, even though the reconciliation did 
not ensue which sometimes follows upon an open fight. 
They had no illusion that the outcome would neces­
sarily be the best attainable, certainly not that which 
they might themselves have personally chosen; but 
the political stability of such a system and the possible 
enlightenment which the battle itself might bring, 
were worth the price. * * * We face difficulties which 
are big with portent and uncertain of solution. Such 
solutions as will arrive, like all human solutions, will 
be likely to be inadequate and unfair placebos. But 
nevertheless they will be compromises, as government 
almost always must be in a free country; and if they 
are to be upset under cover of * * * majestic sententi­
ousness, they are likely to become centers of frictions 
undreamed of by those who avail themselves of this 
facile opportunity to enforce their will.” Learned



107

• pointed to the factors 
iative acquiescence in

oil and doubt in which 
mpositions, validity of 
i locked in a political 
aw and Social Action

ty in their original con­
text in the cautionary 

he duly of deference to

and Cardo ' believed 
oontrivam by which 

i all society should find 
i the give and take of 
he contending groups 
:heir relative strength; 
it animosities might at 

the reconciliation did 
>ws upon an open fight, 
outcome would neces- 
rtainly not that which 
>ersonally chosen; but 
system and the possible 
le itself might bring, 
face difficulties which 

tain of solution. Such 
human solutions, will

• unfair placebos. But 
remises, as government 
•e country; and if they

* * majestic sententi­
me centers of frictions
• ni] themselves of this 

their will.” Learned

Hand, Chief Justice Stone’s Concept of the Judicial 
Function, Dilliard (editor >, The Spirit of Liberty at 
204. 207.

CONCLUSION
The judgment should be reversed.

Respectfully submitted.

GEORGE W. LIEB M A N X,
SIIALE D. STILLER,

1300 Mercantile Rank & Trust Rldg., 
2 Hopkins Plaza,
Baltimore, Maryland 21201,

Special Counsel for Montgomery 
County, Maryland.

RICH ARD  S. M cK E R X O X ,
County Attorney for Montgomery 
County, Maryland.

F RA XC IS B. BURCH,
Attorney General of Maryland,

H E X R Y  R. LORD,
Deputy Attorney General 

of Maryland,

E. ST E P H E X  DEL V,
Assistant Attorney General 

of Maryland.

W IL L IA M  J. BAXLEY,
Attorney General of Alabama.

G ARY K. NELSO X,
Attorney General of Arizona,

JAM ES G. BOX'D,
Assistant Attorney General 

of Arizona.

EV ELLE J. YOU XGER,
Attorney General of California,

ELIZAB ETH  PALM ER,
Assistant Attorney General 

of California,

E D W A R D  M. BELA SCO,
Deputy Attorney General 

of California.
DUKE W. D U XBAR,

Attorney General of Colorado.

RO BERT K. K ILLIAN ,
Attorney General of Connecticut,

F. M ICH AEL AH ERN ,
Assistant Attorney General 

of Connecticut.
W. A X T H O X Y  PARK,

Attorney General of Idaho,

JAM ES R. HARGIS,
Deputy Attorney General 

of Idaho.
TH E O D O R E  L. SE XD AK ,

Attorney General of Indiana,

CH ARLES M. W ELLS,
Counsel for Bartholomew, Indiana 

Consolidated School Corpora­
tion, its Trustees and the Super­
intendent of Schools of Barthol­
omew County. Indiana,

H A R R Y  T. ICE,
GEORGE B. G AVIT,

Special Counsel for Bartholomew, 
Indiana Consolidated School 
Corporation, et al.

RICH ARD  C. TU R XE R ,
Attorney General of Iowa,

GEORGE W. M U RRAY,
Assistant Attorney General

of Iowa.

V E R X  M ILLER,
Attorney General of Kansas,

M A T T H E W  J. DOW D,
JO IIX  C. JO H X SO X,

Assistant Attorneys General 
of Kansas.

ED. W. H AXCO CK ,
Attorney General of Kentucky,



103

CART. T. M ILLER,
Assistant Attorney General 

of Kentucky.

W IL L IA M  J. GUSTE, JR-,
Attorney General of Louisiana.

JAM ES S. ERW IN ,
Attorney General of Maine,

GEORGE W E ST,
Assistant Attorney General 

of Maine.
RO BERT H. QUINN, 

Attorney General of 
Massachusetts,

LA W R E N C E  T. BENCH, 
Assistant Attorney General 

of Massachusetts.

FRED W . FREEM AN ,
CH ARLES F. CLIP PERT,

Counsel for Bloomfield Hills, 
Michigan School District,

W IL L IA M  M. SA XTO N ,
Counsel for Dearborn City, Mtch-

ROBERT B. W EB STE R,
Counsel for Grosse Pointe, Mich 

igan Public School System.

A. F. SUMM ER, . . . .
Attorney General of Mississippi,

ROBERT B. MORGAN,
Attorney General of 

North Carolina,
BU RLEY B. M ITCH ELL, JR., 

Assistant Attorney General of 
North Carolina.

H ELCI JOH AN NESON ,
Attorney General of 

North Dakota,
GERALD V A N D E W A L L E , 

Assistant Attorney General 
of North Dakota.

LEE JOHNSON,
Attorney General of Oregon. 

D AN IE L R. M cLEOD,
Attorney General of 

South Carolina,
G. L E W IS ARGOE, JR.,

Assistant Attorney General 
of South Carolina.

GORDON M YD LAND ,
Attorney General of 

South Dakota,
C. J. K ELLY,

Assistant Attorney General 
of South Dakota.

D A V ID  M. PACK,
Attorney General of Tennessee,

M ILTON  P. RICE,
Deputy Attorney General 

of Tennessee.
M ARTIN  R. M cLENDON,

Assistant Attorney General 
of Mississippi.

JOHN DAN FORTH ,
Attorney General of Missouri,

D. BROOK B A R TLE TT,
Assistant Attorney General 

of Missouri.
CLARENCE A. H. M EYER,

Attorney General of Nebraska,

H AR O LD  M OSHER,
Assistant Attorney General 

of Nebraska.
W A R R E N  B. RU DM AN,

Attorney General of 
New Hampshire.

LOUIS J. L E FK O W ITZ,
Attorney Genet i of New \  ork.

VERN O N  B. ROM NEY,
Attorney General of Utah,

RO BERT B. H AN SEN ,
Deputy Attorney General 

of Utah.
JAM ES M. JEFFORDS,

Attorney General of Vermont.
CH AU N CEY II. BROW N ING, JR., 

Attorney General of 
West Virginia,

V IC T O R  A. BARONE,
Assistant Attorney General 

of West Virginia.

RO BE RT W. W A R R E N ,_
Attorney General of W isconsin,

B E TTY R. BROW N ,
Assistant Attorney General 

of Wisconsin.

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78TC



109

BERT n. MORGAN,
.\ll-irm-y Guieral of 

Nurtli Carolina,
Rl.EY n. M ITCH ELL, JIC, 
Assistant Attorney General of 

North Carolina.
;l g i  j o h a n n e s o n ,

Attorney General of 
North Dakota,

RALD VA N D EW ALLE , 
Assistant Attorney General 

of North Dakota.
E JOHNSON,
Attorney General of Oregon. 
NIEL R. McLEOD,
Attorney General of 

South Carolina,
LEW IS ARGOE, JR.,
Assistant Att y General

of South C ;na.
•KDON MYD1 .ND,
Attorney General of 

South Dakota,
J. KELLY,

A-sistant Attorn General 
of South Dako...

A TI) M. PACK,
Attorney General of Tennessee, 

..TON P. RICE,
Deputy Attorney (ieneral 

of Tennessee.
RNON B. ROM NEY,
Attorney Genera! of Utah,

BERT B. HANSEN,
Deputy Attorney General 

of Utah.
RES M. JEFFORDS,
Attorney General of Vermont.

U  NCEY II. BROW NING, JR., 
Attorney General of 

V est \ irginia,
TOR A BARONE,
AssUtai.i Attorney General 

of W est Virginia.

CRT W. W ARREN ,
:iay General of Wisconsin,

I Y R BROW N.
'• Attorney GeneralliCOIiblll.

CERTIFICATE Ol SERVICE

I, George W. Liebmann, one of the attorneys for Amici 
Curiae Montgomery County, Maryland, et al., and a mem­
ber of the Bar of the Supreme Court of the United States, 
hereby certify that on July 21, 1972, I served copies of the 
foregoing Amici Curiae Brief on the Appellees and Appel­
lants by depositing such copies in .he United States Mail, 
postage prepaid, and addressed to the attorneys of record 
for Appellees and Appellants as follows: Arthur Gochman, 
Esquire, 313 Travis Park West, 711 Navarro, San Antonio, 
Texas 78224, Mario Oblcdo, Esquire, 145 9th Street, San 
Francisco, California 94103, Counsel for Appellees. Pat 
Bailey, Esquire, Assistant Attorney General, P.O. Box 
12548, Capitol Station, Austin, Texas 78711, Charles Alan 
Wright, Esquire, 2500 Red River Street, Austin, Texas 
78705, Counsel for Appellants.

George W. Liebmann

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