Burrus v Wilkerson Brief for Amici Curiae

    IN  T H E

l&tpmtr (Emtrt itf %  Intt^ BtaUz
O otobek T e b m , 1969

No. 864

R obekt P .  B ttbruss, e t  al ., Appellants,
v.

WOODROW W . W lLKEBSO^ STATE BOAED OP
E d u c a t io n , e t  a l v Appellees.

BRIEF FOR
National Education Association of the United States 
The Lawyers' Committee for Civil Rights Under Law 

The Urban Coalition

AS AMICI CURIAE
In Support of the Jurisdictional Statement

Of Counsel for:

R a m s e y  C l a r k  
D a n ie l  P . L evitt  

1725 “ K ”  Street, N. W. 
Washington, D. C. 20006 

Attorneys for Amici Curiae
National Education Association 

of the United States:
D avid  R u b in

1201 Sixteenth Street, N. W. 
Washington, D. C. 20036

Lawyers’ Committee for Civil Bights
Under Law, and The Urban Coalition:

J o h n  W. D ouglas 
G eorge N. L in d sa y  

1660 “ L ”  Street, N. W.
Washington, D. C. 20036

P ress of B yron S. A dams Printing. Inc., W ashington, D . C.

'9



INDEX
Page

Interest oe A m i c i ...............................   1

Questions P resented ............................................................. 3

Statement oe the Ca s e ........................................................  3

Summary oe A rg u m en t ........................................................  5

A rgument ..........................................................    6
I. The District Court Erred in Dismissing Appel­

lants’ Claim That the Equal Protection Clause 
of the Fourteenth Amendment Is Violated by 
Certain Specific Features of the Formula by 
Which the Commonwealth of Virginia Appor­
tions Its Educational Resources Between Appel­
lants, on the One Hand, and Public School Chil­
dren in More Affluent Urban and Suburban 
Counties ................................................................... 6

II. The District Court Erred in Concluding That 
the Decision in Mclnnis and Its Summary A f­
firmance by This Court Insulate From Judicial 
Scrutiny the Statutory Formula Challenged 
Here ...........................................................................  12

Conclusion ................................................................................ 15

TABLE OF AUTHORITIES
Cases :
Bellow v. Wisconsin, No. ——, Dane County Cir. Ct.,

W is................................................................................... 12
Board of Educ. of City of Detroit, Mich. v. Michigan,

No. 103342, Circuit Ct. for Wayne County, Mich. .. 12
Brown v. Board of Education, 347 U.S. 483, 493 (1954) 10
Douglas v. California, 372 U.S. 353 (1963) ................. 11
Harper v. Virginia State Board of Elections, 383 U.S.

663, 670 (1966) ...........................................................  11
McDonald v. Board of Election, 394 U.S. 802 (1969) . . 11



PageI
Mclnnis v. Shapiro, 293 F. Supp. 327 (N.D. 111. 1968), 

aff’d per curiam sub nom. Mclnnis v. Ogilvie, 394

ii Index Continued

Missouri ea; rel. Gaines v. Canada, 305 U.S. 337 (1938) 10
Rodriquez v. San Antonio Independent School District,

No. 68-175 S.A. (W.D. Tex.) ...................................  12
Rogers v. Paul, 382 U.S. 198 (1965) .......... ...................  10
Serrano v. Priest, No. 938254, Calif. Super. Ct. (L.A.

Co. 1969) ........................................................... .. 12
Sipuel v. Board of Regents, 332 U.S. 631 (1948) ..........  10
Sweatt v. Painter, 339 U.S. 629 (1950) .......................... 10

C o n s t it u t io n s  a n d  S t a t u t e s  :

Appalachian Eegional Development Act of 1965, Pub.
L. 89-4, 79 Stat. 5, 40 U.S.C. App. Sec. 1 et seq. . . 7

United States Constitution: Fourteenth Amendment .. 2, 5
Virginia Acts of Assembly, 1968, Chapter 806 .............. 8

O t h e r  A u t h o r it ie s  :

Proceedings of the 72nd Annual Meeting of the South­
ern Association of Colleges and Schools, Dallas, 
Texas, November 1967 .............................................  9

United States Office of Education, Approval and Ac­
creditation of Public Schools, p. 15 (1960) ..........  10



IN  T H E

(Emtrt ni tip United
O ctober T e r m , 1969

No. 864

R obert P .  B urruss , e t  a l ., Appellants,

v.
W oodrow  W .  W ilk erso n , S ta te  B oard of 

E du catio n , et  a l ., Appellees.

BRIEF FOR
National Education Association of the United States 
The Lawyers' Committee for Civil Rights Under Law 

The Urban Coalition

AS AMICI CURIAE
In Support of the Jurisdictional Statement1

INTEREST OF AMICI

1. The National Education Association of the United 
States [NEA], founded in 1857, is a Corporation 
chartered by special Act of Congress in 1906. Its 
membership includes more than one million profes­
sional educators. Its purpose is to improve the char­
acter and advance the interests of the teaching profes-

l  Counsel for Appellants have consented to the filing of this brief. Counsel 
for Appellees have indicated that they do not oppose its filing.



2

sion and to promote generally the cause of education 
in the United States. In furtherance of this purpose, 
the Association has long worked to insure the adequate 
and equitable financing of public education. For more 
than a century, NEA has striven to provide equal edu­
cational opportunity for all American children, in rural 
as well as in urban and suburban sections of the 
Nation.

2. The Lawyers’ Committee for Civil Eights Under 
Law, a non-profit private corporation organized in 
1963, is composed of over 300 lawyers across the 
country. In 1968, with the aid of a grant from the 
Ford Foundation, the Committee initiated a project 
to actively engage the services of lawyers in an attack 
upon problems in such areas as education, housing, and 
economic development. Well over 20,000 volunteer 
hours have been committed to over 600 projects. In 
the field of education, both national and local com­
mittees have undertaken more than a score of projects 
to promote quality education. For over a year, these 
committees have studied, reviewed, and proposed vari­
ous provisions for reform of education financing. It is 
because of the importance of this case to the effort to 
bring about adequate systems of education financing 
that the Lawyers’ Committee urges the Court to grant 
the requested relief.

3. The Urban Coalition, a private non-profit cor­
poration, has established as one of its major objectives 
the extension of quality education, particularly to those 
students from disadvantaged backgrounds. Essential 
to this task is the removal of the gross inequities result­
ing from state education finance formulae which pres­
ently favor suburban areas at the expense of rural and 
urban areas. The present case challenges certain fea­



tures of the education financing system of the Com­
monwealth of Virginia. However, the factual pattern 
which the case presents and the important Constitu­
tional issues it raises extend to States across the Nation. 
It is for this reason—because of the importance of this 
case to the future of American education—that the 
Urban Coalition requests this Court to grant the relief 
sought by Appellants.

QUESTIONS PRESENTED

1. Whether the District Court erred in dismissing 
Appellants’ claim that the Equal Protection Clause of 
the Fourteenth Amendment is violated by certain spe­
cific features of the formula by which the Common­
wealth of Virginia apportions its educational resources 
between the public school children of Bath County and 
similarly situated counties, on the one hand, and those 
in more affluent urban and suburban counties.

2. Whether the District Court erred in holding that 
the decision in Mclnnis v. Shapiro, 293 F. Supp. 327 
(N.D. 111. 1968), aff’d per curiam sub nom. Mclnnis v. 
Ogilvie, 394 U.S. 322 (1969), insulates from judicial 
scrutiny the statutory formula challenged here.

STATEMENT OF THE CASE

Appellants filed this civil proceeding in the United 
States District Court for the Western District of V ir­
ginia, Harrisonburg Division, seeking declaratory and 
injunctive relief with respect to the formula by which 
the Commonwealth of Virginia apportions aid among 
its public schools. The complaint alleged with particu­
larity that the public school children of Bath County, 
Virginia, and similarly situated counties [hereinafter 
Appellants], were deprived of their rights under the 
Equal Protection Clause of the Fourteenth Amend­



4

ment as a result of the interplay of state law and the 
County’s poverty.

On November 16, 1968, almost simultaneously with 
the District Court decision in Mclnnis v. Shapiro, 293 
F. Supp. 327 (N.D. 111. 1968), United States Dis­
trict Judge Ted Dalton held that Appellants were 
entitled to a three-judge court to pass upon the validity 
of their claims. (J.S. App. B ) After taking testi­
mony and other evidence with respect to the educa­
tional situation in Bath County and its relationship to 
the formula by which the Commonwealth of Virginia 
apportions educational resources, the three-judge court 
asked counsel for both sides to address themselves to 
the decision in Mclnnis and its per curiam affirmance 
by this Court, and to discuss possible judicial remedies 
for the conceded educational deficiencies found in Bath 
County. Counsel for appellees responded, resting their 
defense squarely and exclusively upon Mclnnis. A p­
pellants filed a memorandum distinguishing Mclnnis, 
and proposing appropriate judicial remedies.

On May 27,1969, the three-judge court filed its opin­
ion, dismissing the complaint. (J. S. App. A ) The 
court conceded the existence of “ marked deficiencies 
of the Bath County School physical and instructional 
facilities, when compared with those of the other politi­
cal subdivisions in Virginia.”  (J. S. 4a) But it con­
cluded, following Mclnnis, that no relief was available. 
The court said that

“  [W ]e do not believe that [the deficiencies and 
differences] are creatures of discrimination by the 
State. Our reexamination of the Act confirms 
that the cities and counties receive State funds 
under a uniform and consistent plan. With this 
conclusion we resolve the chief issue of the case, 
and exposition of the method of computation is not 
necessary. . . .



0

“  Truth is, the inequalities suffered by the school 
children of Bath are due to the inability of the 
county to obtain, locally, the moneys needed to be 
added to the State contribution to raise the educa­
tional provisions to the level of that of some of the 
other counties or cities. The blame cannot be 
placed on the people or the officials of the county. 
Rather it is ascribable solely to the absence of tax­
able values sufficient to produce the required 
moneys. The tax rate and the appropriations have 
been strained to afford the children better schools. ’ ’ 
(J. S. 4a)

SUMMARY OF ARGUM ENT

First, the state laws challenged below have the effect 
of depriving Appellants of their rights under the Equal 
Protection Clause of the Fourteenth Amendment. (1) 
These laws concededly deny to Appellants desperately 
needed state supplements to teachers’ salaries, and 
other forms of state assistance, which are accorded to 
more affluent urban and suburban counties. (2) They 
reduce Appellants to the use of educational facilities 
branded “ substandard”  by state authorities, which may 
contribute to the system’s lack of accreditation, and 
whose improvement, the Commonwealth admits, is be­
yond the County’s resources. (3) And they make it im­
possible for Appellants to obtain either adequate voca­
tional training or a curriculum broad enough to render 
graduates of the County’s schools eligible to attend 
state institutions of higher learning. As a result, 
Bath County’s young people are deprived of educa­
tional incentive and are relegated to poorly paid 
work as domestics or unskilled laborers, the County’s 
Appalachian poverty is made self-perpetuating, and 
the gulf between rich and poor areas of the Common­
wealth is maintained and widened.



6

Second, the present case affords a timely and appro­
priate vehicle for mitigating the chilling effect of the 
decision in Mclnnis v. Shapiro, 293 F. Supp. 327 (N.D. 
111. 1968), aff’d per cnriam sub nom. Mclnnis v. Ogilvie, 
394 U.S. 322 (1969). As the present case illustrates, 
the District Court decision in Mclnnis, and its sum­
mary affirmance by this Court, have induced lower 
federal and state courts indiscriminately to reject 
efforts to measure state formulae for financing public 
education by the requirements of the Equal Protection 
Clause. Until this Court indicates that its summary 
affirmance in Mclnnis was not intended to have this 
deadening effect, litigants, whether in Appalachia or 
in urban areas, will find it unduly difficult, if  not im­
possible, to obtain the judicial relief to which they are 
entitled. We believe this ease a highly appropriate 
vehicle for mitigating the overkill effect of Mclnnis.

ARGUMENT

I. The District Court erred in dismissing Appellants' claim 
that the Equal Protection Clause of the Fourteenth Amendment 
is violated by certain specific features of the formula by 
which the Commonwealth of Virginia apportions its educa­
tional resources between Appellants, on the one hand, and 
public school children in more affluent urban and suburban 
counties.

The District Court agreed that Bath County is a poor 
county, and that its poverty is related to the “ defi­
ciencies and differences”  which characterize its educa­
tional system. And the court commended the County 
and its people for straining their own financial re­
sources to the legal and practical maximum. (J. S. 
4a) But the court concluded that because school dis­
tricts in Virginia receive state funds “ under a uniform 
and consistent plan,”  there was no violation of the



7

Equal Protection Clause of the Fourteenth Amend­
ment. {Ibid.)

In this respect, the court was in error. Bath County, 
located in the southwestern portion of the state, is in­
deed a poor county.2 As the record shows, nearly half 
of the County’s families have an income of under 
$3000. (Tr. 27) Principal occupations are serving 
as domestics at The Homestead resort and working as 
laborers in the County’s forests. The County has no 
public library, no theatres, no public tennis courts or 
golf courses, and no public swimming pools. (Tr. 70)

The County now taxes itself at the maximum level 
permitted by state law, and this year will spend 93 
percent of its total tax revenues on its school system. 
(Tr. 104)

As a result of the interplay of the County’s poverty 
and the way in which otherwise uniform and consistent 
state laws operate, Appellants are denied equal oppor­
tunities as compared to those afforded public school 
children in more affluent urban and suburban parts of 
the Commonwealth.

This brief will focus on several key discriminations 
resulting from the interplay of poverty and state law.

1. Salary Assistance: Because of its geographical 
location and its poverty, Bath County is unable to re­
cruit a full staff of accredited teachers. In average 
teacher’s salary, the County ranks 113th of 127 in V ir­
ginia. (Tr. 30) In percentage of teachers with ad­
vanced degrees, the County places 119th.

Instead of compensating for these inadequacies, V ir­
ginia law visits harsh financial penalties upon the

2 An "Appalachian County”  for purposes of the Appalachian Regional De­
velopment Act of 1965, P.L. 89-4, 79 Stat. 5, 49 U.S.C. — , App. § 1 et seq. 
See Tr. 21.



8

County because of them. The Commonwealth has legis­
lated a state salary supplement in the amount of 60 per­
cent of teachers’ salaries—the principal form of state 
financial aid to public education. But state assistance 
is adjusted downward in relationship to the number of 
unaccredited teachers and to the extent that the number 
of students per class drops below 30 in elementary 
school and 23 in high school. 1968 Acts of Assembly, 
Ch. 806, Item 564. These penalty provisions presum­
ably have the otherwise laudatory purpose of providing 
incentives for school districts to hire only accredited 
teachers and to use their resources efficiently.

But in the circumstances in Bath County, the incen­
tive system not only breaks down, but works in reverse. 
Sixteen of the County’s 53 teachers are unaccredited 
and therefore ineligible to receive any form of state 
salary supplement. (Tr. 15-16) And the County can­
not aggregate the necessary number of students per 
classroom; the County is sparsely settled and carved 
up by beautiful but inconveniently placed mountains.3 
(Tr. 14-16) As a result, the state salary assistance 
program strips Bath County of desperately needed 
state funds—which are paid to more affluent school 
districts.

Other forms of salary assistance are likewise denied 
Bath County, but granted less needy school districts. 
Virginia, for example, provides a 60 percent supple­
ment to salaries of principals (item 560), other super­
visory personnel (item 557) and vocational training 
and other special teachers (item 558). But Bath 
County cannot afford principals or assistant principals 
in its elementary schools, and has no supervisors of

8 The topography makes consolidation of school districts or schools not 
feasible.



9

instruction, vocational training teachers, or visiting 
specialists. (Tr. 15, 73-74) Nor is the County able 
to earn its share of state matching grants for voca­
tional training equipment. (Tr. 73-74, 113) It is 
simply not affluent enough to gain access to state aid.

No one would suggest that Virginia could per­
missibly provide mortgage assistance to all homeown­
ers, provided they live in $40,000 homes. The state 
supplement program is precisely analogous, and it is 
equally unconstitutional as applied to Bath County.

2. Curriculum Deficiencies: As a consequence of its 
own poverty and the partial denial to it of state 
salary and other assistance, the County is unable to 
offer a currieulmn which will help break the cycle of 
poverty. Because of the lack of funds and the ex­
pensive nature of this kind of education, Bath County 
is unable to offer technical vocational training. (Tr. 74) 
Nor is it able to provide a curriculum which has a 
sufficient range of courses to entitle graduates of the 
County’s schools to enter such state institutions of 
higher learning as William and Mary College (Tr. 
79) .4 A  great many institutions,5 moreover, require ap­
plicants to come from accredited high schools, and the 
Bath County schools are unaccredited. See Proceed­
ings of 72d Annual Meeting of the Southern Associa­
tion of Colleges and Schools, Dallas, Texas, November 
1967. As a result, students drop out in large numbers 
to take such dead-end jobs as caddying at The Home­
stead. (Tr. 78)

4 Bath County schools offer but 39.5 units compared to the statewide 
average o f over 62, and a figure for Fairfax County of 137. (Tr. 30-31)

5 We are advised, however, that Virginia’s own state institutions accept 
accreditation by the Commonwealth itself, which Bath County schools have 
been given.



io
It was conceded below that it is not witbin the power 

of the County, unaided, to correct these curriculum 
deficiencies. We contend that so long as Virginia 
maintains institutions of higher learning open to high 
school graduates who have taken the required courses, 
it must insure that schools in each and every county 
offer at least the curriculum necessary to meet the 
entrance requirements set by such state institutions. 
See Rogers v. Paul, 382 U.S. 198 (1965) ; Sweatt v. 
Painter, 339 U.S. 629 (1950) ; Sipuel v. Board of Re­
gents, 332 U.S. 631 (1948); Missouri ex rel. Gaines 
v. Canada, 305 U.S. 337 (1938). As this Court said 
in Brown v. Board of Education, 347 U.S. 483, 493 
(1954), “  [WJhere the State has undertaken to pro­
vide [public education, it] is a right which must be 
made available to all on equal terms.”

3. School Plant: Bath County, as a result of its 
proverty, is forced to use a substantial number of ed­
ucational facilities which the Commonwealth’s own 
experts have ruled “ substandard” . These include 
school cafeterias with earthen floors! Since adequate 
school plant is one of the criteria which determine 
a school system’s accreditation,6 the deficiencies in Bath 
County’s school plant may be a factor in rendering 
its graduates ineligible for admission to some insti­
tutions of higher learning. Affluent counties, able 
to raise funds for school construction, receive some 
state assistance with respect to interest costs. (Tr. 
147) But the Commonwealth provides no funds for 
construction of local school facilities—even to elimi­
nate concededly “ substandard”  facilities. Here again, 
state law aids the rich while declining to aid the poor.

*  *  *

e United States Office of Education, Approval and Accreditation of Public 
Schools, p. 15 (1960).



11

Certainly it cannot be said that the Court below sub­
jected these discriminatory effects to the “ careful ex­
amination . . . warranted where lines are drawn on 
the basis of wealth. . . McDonald v. Board of 
Election, 394 U.S. 802 (1969); Harper v. Virginia 
State Board of Elections, 383 U.S. 663, 670 (1966) ; 
Douglas v. California, 372 U.S. 353 (1963).

Each of the aforementioned evils is susceptible of 
remedy by a simple, easily enforceable court order. 
(1) The District Court should suspend application 
to Bath County and similarly situated counties of the 
penalty provisions whose effect is to deprive the County 
of its share of state salary assistance. The Common­
wealth should be required to provide 60 percent of 
teachers’ salaries here, just as it does in Fairfax and 
in other affluent counties, without regard to the num­
ber of unaccredited teachers or to deviations in class 
size. These are concededly circumstances not within 
the County’s control, and may not be made the basis 
for penalizing the County financially. (2) Similarly, 
Virginia should be required to do whatever is nec­
essary, providing special funds or visiting faculty, in 
order to enable the County to offer a curriculum 
which will at least make its high school graduates 
eligible to meet the entrance requirements set by 
William and Mary College, and like state institutions. 
(3) Finally, it should be required to provide the 
funds necessary to correct conceded deficiencies in 
Bath County’s physical facilities, at least to the ex­
tent these affect the system’s accreditation.



12

II. The District Court erred in concluding that the decision 
in Mclnnis and its summary affirmance by this Court insulate 
from judicial scrutiny the statutory formula challenged here.

One of the most distressing circumstances to those 
working to improve the quantity and quality of Ameri­
can education is the way in which Mclnnis and its 
summary affirmance by this Court have been held to 
shut the door to efforts to challenge state formulae 
for apportioning educational resources. The present 
case is but one example of the unnecessarily chilling 
effect of Mclnnis.’’

Although we did join as amici to urge this Court to 
note probable jurisdiction in Mclnnis, it is not nec­
essary for us now to quarrel with the decision reached 
there. Mclnnis is easily distinguishable from the 
present case, despite the reluctance of lower courts to 
observe the distinctions.

1. Mclnnis was a decision on a bare complaint, sup­
plemented only by legal memoranda; no factual ma­
terials were adduced. In the present case, on the other 
hand, a full set of facts was put into the record, in­
cluding abundant documentation, live testimony and 
factual concessions by the Commonwealth.

2. In Mclnnis, the court rejected what it deemed 
the “ nebulous concept”  under which plaintiffs there 
sought to require allocation of state funds solely on 
the basis of the “ educational needs”  of students. The

1 1n addition to the present case, see Serrano v. Priest, No. 938254, Calif. 
Super. Ct. (L.A. Co. 1969), dismissed on the basis o f the lower court decision 
in Mclnnis. Moreover, eases in other jurisdictions, at least in part, are not 
being filed or pressed for fear Mclnnis will lead to their quick dismissal. See, 
e.g., Board o f Educ. o f City o f Detroit, Mich. v. Michigan, No. 103342, Circuit 
Ct. for Wayne County, Mich.; Rodriquez v. San Antonio Independent School 
District, No. 68-175 S.A. (W.D. Tex.) ; Bellow v. Wisconsin, No. — —, Dane 
County Cir. Ct., Wis.



13

District Court concluded that it lacked the means to 
ascertain what those needs were, and the ability to 
fashion a decree to implement such a standard. In 
the present case, on the other hand, Appellants ask 
only that they not he penalized because of the poverty 
of the County. Bath County should receive only the 
same state salary assistance that more affluent coun­
ties receive—without regard to penalties triggered by 
the County’s poverty. The Commonwealth should in­
sure that Bath County is able to offer a curriculum 
which at least equips graduates to apply for admission 
to William and Mary College and like state institu­
tions, and that the County’s physical facilities are 
raised to levels which the Commonwealth’s own in­
spectors will concede to be not “ substandard.”

3. In Mclnnis, the District Court emphasized that 
Illinois guaranteed that each school district would ex­
pend at least $400 per pupil, and that the legislature 
periodically raised the floor. Virginia guarantees no 
such mininram expenditure per pupil.8 And its legis­
lature, as the record here demonstrates, has stead­
fastly rejected recommendations by distinguished com­
missions that it do more for poor school districts.8

5. The Mclnnis court observed that under the Illi­
nois statutory scheme, each school system has an op­
portunity to choose what portion of local revenues 
are to be devoted to education as opposed to other 
public needs. It held this decision “ reasonable, es­
pecially since the common school fund assures a mini­
mum of $400 per student.”  293 F. Supp., at 333.

* This statement must be qualified. In the unlikely event that the Com­
monwealth’s contribution of 60 percent of salaries yields less than $110 per 
pupil, that amount will be furnished in lieu of teacher aid. 9

9 See, e-g., the Turner Commission Report of 1967.



u

Here, not only does tlie Commonwealth, provide Bath 
Connty with no such $400 floor, hut the County will 
this year spend 93 percent of all local revenues on 
education, is already taxing itself at the maximum 
level permitted by state law, and therefore does not 
have the luxury of choosing between education and 
other public needs. Even the County’s single-minded 
concentration on education leaves it woefully short of 
educational funds.

In sum, Mclnnis and the present case are wTorlds 
apart. Here Appellants proceed on an entirely differ­
ent theory, focusing on equal educational opportuni­
ties and facilities rather than arguably difficut-to-define 
student educational needs. Here, the interplay of V ir­
ginia’s statutory formula and Bath County’s poverty 
is well documented, and indeed is conceded.

We do not, of course, know why this Court declined 
to review Mclnnis. It may have balked at the lack 
of a factual record. It may have been troubled by 
the request that it relate state educational expenditures 
to the “ educational needs”  of students. It may have 
been influenced by the $400 per pupil floor guaranteed 
by the state legislature to all school districts. Or it 
may have been persuaded that the Illinois legislature 
was facing up to the State’s educational needs.

Whatever the reasons, none of them applies to the 
present ease, and the Court below was in error in 
following Mclnnis.10 We believe that it is vital that 
this Court now make clear that Mclnnis was not in­
tended to shut the door to judicial review of all for­
mulae by which the states apportion funds among 
school districts. Mclnnis has already had a substantial

10 Of course, even i f  Mclnnis were squarely in point, this Court would not 
be precluded by its summary affirmance in that case from setting this one 
for plenary review. See The Sunday Law Cases, 366 U.S. 420, 511 (1961).



chilling effect oil school litigation. The present case 
is, we believe, a highly appropriate one for demonstrat­
ing that the courts are open to measure state for­
mulae for apportioning educational resources by the 
standards of the Equal Protection Clause.

CONCLUSION

We believe the record in this case requires reversal 
of the decision of the District Court and the entry of 
appropriate relief. Should the Court not wish to un­
dertake the latter step, we believe it would be a sub­
stantial service to American education and especially 
to the school children of rural counties like Bath, 
were this Court simply to remand to the District Court 
with instructions to fashion relief so as to prevent 
the interplay of poverty and state law from violating 
the Fourteenth Amendment rights of the children.

Respectfully submitted,

Of Counsel for:

R a m s e y  Cl a r k  
D a n ie l  P. L evitt  

1725 “ K ”  Street, N. W. 
Washington, D. C. 20006 

Attorneys for Amici Curiae

National Education Association 
of the United States:

D avid  R u bin
1201 Sixteenth Street, N. W. 
Washington, D. C. 20036

Lawyers’ Committee for Civil Bights
Under Law, and The Urban Coalition:

J o h n  W . D ouglas 
G eorge N. L in dsay  

1660 “ L ”  Street, N. W.
Washington, D. C. 20036