Compare and contrast the historical perspective of school choice and voucher programs to contemporary schools/ school districts and educational issues. Do you feel the l

LaMorte, M. W. (2011). School Law: Cases and Concepts(10th ed.). Pearson Education (US). https://bookshelf.vitalsource.com/books/9780133000603 Chapter 7: School Finance and School Choice Issues

This chapter focuses on two finance-related issues. The first section provides a historical perspective to the legal attacks on the constitutionality of the financing and adequacy of state school finance plans.* These legal attacks began in the early 1970s and continue to be litigated in several states. The second section examines the legal issues surrounding various states’ responses to the notion of providing increasing parental choice in selecting appropriate educational opportu-nities for their children.

I. SCHOOL FINANCE REFORM

A. Background

Successful court decisions in the early days of public school desegregation efforts revealed that the judiciary would deal with issues that other branches of government were unwilling to be concerned with or were reluctant to recognize. Seizing on the success with desegregation decisions in the courts, many persons who perceived that they were being denied rights due to governmental action or inaction increasingly employed the judiciary in an attempt to redress alleged grievances. One such group of persons brought the issue of equality of educational opportunity before the courts. Their contention in the earliest cases was that many state methods of financing public education were unconstitutional because they violated the Equal Protection Clause for certain classes of people.

Reliance on local revenue to support a large portion of the total public school budget, it was alleged, was unfair because of the disparity in taxable wealth among local school systems.** Because

_____________________ *As part of my university assignment, I had the opportunity to serve as the consultant to the office of the governor, education committees of the legislature, state superintendent of schools, and state board of education regarding Georgia school finance issues for twenty years. Interestingly enough, I also served as consultant to both plaintiffs and defendants (they were friendly hostiles) in McDaniel v. Thomas, the unsuccessful Georgia finance litigation. Although unsuccessful, significant equalization legislation was enacted as a result of the political interest generated by the lawsuit. **Nationally, local revenue has made up approximately 44 percent of the total revenue for elementary and secondary schools, whereas state revenue made up approximately 47 percent and federal revenue nearly 9 percent. Across the country, local support for public elementary and secondary education has ranged from a high of approximately 67 percent to a low of approximately 7 percent. Hawaii is the only state having no official local support for education.

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the property tax is the most commonly used local school tax, many school finance experts have defined school system wealth as the ratio of taxable property divided by the number of students. Consequently, a “property-wealthy” school system would achieve such status by having much valuable taxable property, such as factories, utilities, or natural resources, and few children to educate. Conversely, a “property-poor” school system would have little valuable property and many children to educate. A school system composed largely of trailer parks, where each trailer contained several school-age children, would be an example of a property-poor system. School-district wealth is based on property wealth and not on income wealth; consequently, there may or may not be a relationship in property-poor or wealthy school systems with the income wealth of its inhabitants.

Those who contend that a state’s method of financing the public schools is unfair have often argued that property-wealthy school systems can raise large amounts of money with lower tax rates than can property-poor systems. It is alleged that allowing such a situation under a state-authorized method of financing public education is unfair to both taxpayers and the recipients of school services in property-poor systems. For example, assume that the property-wealthiest school system in a state has a taxable assessed valuation per student (usually expressed on the basis of average daily attendance, membership, or full-time equivalent) of $800,000, and the property-poorest school system has a taxable assessed valuation per student of $50,000. A levy of one mill (one-tenth of 1 percent, also expressed as a tax rate of $1 per $1,000 of property value) would raise $800 per student in the property-wealthiest system and only $50 per student in the property-poorest school system. Because education is a responsibility of the state, school finance reformers have alleged that a state’s allowing a school-financing system in which such disparities operate in favor of property-wealthy school systems denies equality of educational opportunity to those students in property-poorer school systems.

Many school finance issues have been raised since the earliest court cases. Those that have received the greatest sustained court attention addressed (1) the alleged inequality of educational opportunity resulting from statewide school finance systems that make educational funding a function of district property wealth, (2) whether a disputed finance scheme provides each child with at least a basic or adequate education, (3) the importance of local control, (4) and legislative recalcitrance in effecting court-ordered reform. Widely diverse collateral issues have included the effects of municipal overburden and allowing recapture; that is, excess revenue raised in property-wealthy districts to be distributed by the state to property-poor districts. Court attention to these issues will be the subject of the remainder of this section on school finance reform.

B. Early Decisions In one of the earliest decisions, McInnis v. Shapiro, 293 F. Supp. 327 (Ill. 1968), aff’d sub nom, McInnis v. Ogilvie, 394 U.S. 322 (1969), the Illinois method of financing public education was described by plaintiffs as being particularly inequitable because it permitted wide variations in expenditures per student and did not apportion funds according to the educational needs of students. In rejecting this contention, the court declared that the controversy was essentially nonjusticiable because of a lack of judicially manageable standards. The court contended that equal expenditures per student were inappropriate as a standard and that courts were ill equipped to devise an equitable financing plan for the public schools. A virtually indistinguishable case, Burruss v. Wilkerson, 310 F. Supp. 572 (Va. 1969), aff’d mem., 397 U.S. 44 (1970), essentially reached the same conclusion as McInnis.

Questions raised in these early cases revealed the lack of empirical data necessary to have a clear and accurate understanding of the effects of a state’s finance system. Additionally, these

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cases revealed other methodological shortcomings, such as the lack of consensus over the goals of schooling and especially what constituted a “basic” education, an absence of meaningful cost-effectiveness analysis, a clear definition of educational need, and the inexactitude of measurement technology. Courts, it soon became evident, had great difficulty in dealing with broad generalizations or abstractions concerning education, requiring instead quantifiable evidence.

C. Fiscal Neutrality Lack of success in McInnis and Burruss did not dissuade others interested in school finance reform from continuing a legal assault on interdistrict resource inequality. A California case, Serrano v. Priest, 487 P.2d 1241 (Cal. 1971) (Serrano I), provided the court with a judicially manageable standard, which had been missing in McInnis and Burruss. In this case the plaintiffs attempted to demonstrate that the California method of financing public education allowed substantial disparities among the various school districts in the amount of revenue available for education, thereby denying students equal protection of the laws under both the United States and California constitutions.

Furthermore, plaintiffs alleged that under this system, parents in property-poor districts were required to pay taxes at a higher rate than taxpayers in many other districts to provide the same or lesser educational opportunities for their children. In its decision, the California Supreme Court established that education was a constitutionally protected fundamental interest and that “wealth” was a “suspect classification.” When a fundamental interest or suspect classification is involved, the court contended, the state must establish not only that it has a compelling interest that justifies the law, but that the distinctions drawn by the law are necessary to further its purpose. Employing this line of reasoning places the so-called burden of proof on the state. Perhaps most important in this decision was the standard established by the court to determine whether or not a school finance plan was constitutional. Under this standard, which the court called fiscal neutrality, the quality of a child’s education could not be based on the wealth of a child’s local school district but rather had to be based on the wealth of the state as a whole. This provided the court with a judicially manageable standard, in contrast to the “needs” standard in McInnis, as the court merely had to reject the present financing plan as unconstitutional, thereby placing the burden of adopting a constitutionally acceptable finance plan with the state.*

Serrano advanced the notion that the state had the responsibility for financing education. This issue, whether the state or local school districts have ultimate financial control over public schooling, has become central in most school finance decisions.

D. Rodriguez Suits were filed in both state and federal courts in more than three dozen states after the California Serrano I decision in the first “wave” of initial attacks on existing school financing schemes. In many of these suits, plaintiffs were successful in the lower courts in their request that the court endorse the fiscal neutrality standard adopted in Serrano I to remedy wealth disparity. One of these cases, San Antonio Independent School District v. Rodriguez, provided the United States Supreme Court with an opportunity to address this issue.

___________________ *A subsequent decision by a California Supreme Court in Serrano II, 557 P.2d 929 (Cal. 1976), cert. denied, 432 U.S. 907 (1977), again affirmed the trial court’s finding that the California school finance system was unconstitutional under the equal protection provision of the state constitution. Serrano III, 226 Cal. Rptr. 584 (1986) held that there had been full compliance with the original Serrano mandate to improve equity.

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SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. RODRIGUEZ

Supreme Court of the United States, 1973 411 U.S.1

MR. JUSTICE POWELL delivered the opinion of the Court. This suit attacking the Texas system of financing public education was initiated by Mexican-American

parents whose children attend the elementary and secondary schools in the Edgewood Independent School District, an urban school district in San Antonio, Texas. They brought a class action on behalf of schoolchildren throughout the State who are members of minority groups or who are poor and reside in school districts having a low property tax base. * * * The complaint was filed in the summer of 1968 and a three-judge court was impaneled in January 1969. In December 1971 the panel rendered its judgment in a per curiam opinion holding the Texas school finance system unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The State appealed, and we noted probable jurisdiction to consider the far-reaching constitutional questions presented. * * * For the reasons stated in this opinion, we reverse the decision of the District Court.

The first Texas State Constitution, promulgated upon Texas’ entry into the Union in 1845, provided for the establishment of a system of free schools. Early in its history, Texas adopted a dual approach to the financing of its schools, relying on mutual participation by the local school districts and the State. * * *

Until recent times, Texas was a predominantly rural State and its population and property wealth were spread relatively evenly across the State. Sizable differences in the value of assessable property between local school districts became increasingly evident as the State became more industrialized and as rural-to-urban population shifts became more pronounced. The location of commercial and industrial property began to play a significant role in determining the amount of tax resources available to each school district. These growing disparities in population and taxable property between districts were responsible in part for increasingly notable differences in levels of local expenditure for education.

* * * Recognizing the need for increased state funding to help offset disparities in local spending and to meet

Texas’ changing educational requirements, the state legislature in the late 1940s undertook a thorough evaluation of public education with an eye toward major reform. * * * [It established] the Texas Minimum Foundation School Program. Today, this Program accounts for approximately half of the total educational expenditures in Texas. The Program calls for state and local contributions to a fund earmarked specifically for teacher salaries, operating expenses, and transportation costs. The State, supplying funds from its general revenues, finances approximately 80% of the Program, and the school districts are responsible—as a unit—for providing the remaining 20%. The districts’ share, known as the Local Fund Assignment, is apportioned among the school districts under a formula designed to reflect each district’s relative taxpaying ability. * * *

* * * The school district in which appellees reside, the Edgewood Independent School District, has been

compared throughout this litigation with the Alamo Heights Independent School District. This comparison between the least and most affluent districts in the San Antonio area serves to illustrate the manner in which the dual system of finance operates and to indicate the extent to which substantial disparities exist despite the State’s impressive progress in recent years. Edgewood is one of seven public school districts in the metropolitan

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area. Approximately 22,000 students are enrolled in its 25 elementary and secondary schools. The district is situated in the core-city sector of San Antonio in a residential neighborhood that has little commercial or industrial property. The residents are predominantly of Mexican-American descent: approximately 90% of the student population is Mexican-American and over 6% is Negro. The average assessed property value per pupil is $5,960—the lowest in the metropolitan area—and the median family income ($4,686) is also the lowest. At an equalized tax rate of $1.05 per $100 of assessed property—the highest in the metropolitan area—the district contributed $26 to the education of each child for the 1967–1968 school year above its Local Fund Assignment for the Minimum Foundation Program. The Foundation Program contributed $222 per pupil for a state–local total of $248. Federal funds added another $108 for a total of $356 per pupil.

Alamo Heights is the most affluent school district in San Antonio. Its six schools, housing approximately 5,000 students, are situated in a residential community quite unlike the Edgewood District. The school population is predominantly “Anglo,” having only 18% Mexican-Americans and less than 1% Negroes. The assessed property value per pupil exceeds $49,000, and the median family income is $8,001. In 1967–1968 the local tax rate of $.85 per $100 of valuation yielded $333 per pupil over and above its contribution to the Foundation Program. Coupled with the $225 provided from that Program, the district was able to supply $558 per student. Supplemented by a $36 per-pupil grant from federal sources, Alamo Heights spent $594 per pupil.

Although the 1967–1968 school year figures provide the only complete statistical breakdown for each category of aid, more recent partial statistics indicate that the previously noted trend of increasing state aid has been significant. For the 1970–1971 school year, the Foundation School Program allotment of Edgewood was $356 per pupil. * * * Alamo Heights enjoyed a similar increase under the Foundation Program, netting $491 per pupil in 1970–1971. These recent figures also reveal the extent to which these two districts’ allotments were funded from their own required contributions to the Local Fund Assignment. Alamo Heights, because of its relative wealth, was required to contribute out of its local property tax collections approximately $100 per pupil, or about 20% of its Foundation grant. Edgewood, on the other hand, paid only $8.46 per pupil, which is about 2.4% of its grant. It appears then that, at least as to these two districts, the Local Fund Assignment does reflect a rough approximation of the relative taxpaying potential of each.

Despite these recent increases, substantial interdistrict disparities in school expenditures found by the District Court to prevail in San Antonio and in varying degrees throughout the State still exist. And it was these disparities, largely attributable to differences in the amounts of money collected through local property taxation, that led the District Court to conclude that Texas’ dual system of public school financing violated the Equal Protection Clause. * * *

* * * * * *We must decide, first, whether the Texas system of financing public education operates to the

disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. If so, the judgment of the District Court should be affirmed. If not, the Texas scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.

* * * The wealth discrimination discovered by the District Court in this case, and by several other courts that

have recently struck down school financing laws in other states, is quite unlike any of the forms of wealth discrimination heretofore reviewed by this Court. * * *

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The case comes to us with no definitive description of the classifying facts or delineation of the disfavored class. Examination of the District Court’s opinion and of appellees’ complaint, briefs, and contentions at oral arguments suggests, however, at least three ways in which the discrimination claimed here might be described. The Texas system of school f-nancing might be regarded as discriminating (1) against “poor” persons whose incomes fall below some identifiable level of poverty or who might be characterized as functionally “indigent,” (2) against those who are relatively poorer than others, or (3) against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts. Our task must be to ascertain whether, in fact, the Texas system has been shown to discriminate on any of these possible bases and, if so, whether the resulting classification may be regarded as suspect.

The precedents of this Court provide the proper starting point. The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. * * *

* * * Only appellees’ first possible basis for describing the class disadvantaged by the Texas school financing

system—discrimination against a class of definably “poor” persons—might arguably meet the criteria established in these prior cases. Even a cursory examination, however, demonstrates that neither of the two distinguishing characteristics of wealth classifications can be found here. First, in support of their charge that the system discriminates against the “poor,” appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly defined as indigent, or as composed of persons whose incomes are beneath any designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts. A recent and exhaustive study of school districts in Connecticut concluded that “[i]t is clearly incorrect . . . to contend that the ‘poor’ live in ‘poor’ districts. . . . Thus, the major factual assumption of Serrano—that the educational financing system discriminates against the ‘poor’—is simply false in Connecticut.” Defining “poor” families as those below the Bureau of the Census “poverty level,” the Connecticut study found, not surprisingly, that the poor were clustered around commercial and industrial areas—those same areas that provide the most attractive sources of property tax income for school districts. Whether a similar pattern would be discovered in Texas is not known, but there is no basis on the record in this case for assuming that the poorest people—defined by reference to any level of absolute impecunity—are concentrated in the poorest districts.

Second, neither appellees nor the District Court addressed the fact that, unlike each of the foregoing cases, lack of personal resources had not occasioned an absolute deprivation of the desired benefit. The argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer-quality education than that available to children in districts having more assessable wealth. Apart from the unsettled and disputed question whether the quality of education may be determined by the amount of money expended for it, a sufficient answer to appellees’ argument is that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages. * * *

For these two reasons—the absence of any evidence that the financing system discriminates against any definable category of “poor” people or that it results in the absolute deprivation of education—the disadvantaged class is not susceptible of identification in traditional terms.

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As suggested above, appellees and the District Court may have embraced a second or third approach, the second of which might be characterized as a theory of relative compa-ative discrimination based on family income. Appellees sought to prove that a direct correlation exists between the wealth of families within each district and the expenditures therein for education. That is, along a continuum, the poorer the family, the lower the dollar amount of education received by the family’s children.

* * * This brings us, then, to the third way in which the classification scheme might be defined—district

wealth discrimination. Since the only correlation indicated by the evidence is between district property wealth and expenditures, it may be argued that discrimination might be found without regard to the individual income characteristics of district residents.* * *

However described, it is clear that appellees’ suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in its districts that happen to have less taxable wealth than other districts. The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: The class is not saddled with such disabilities, subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.

We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class. But in recognition of the fact that this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied solely on this contention. They also assert that the State’s system impermissibly interferes with the exercise of a “fundamental” right and that accordingly the prior decisions of this Court require the application of the strict standard of judicial review. * * * It is this question—whether education is a fundamental right, in the sense that it is among the rights and liberties protected by the Constitution—which has so consumed the attention of courts and commentators in recent years.

* * * Nothing this Court holds today in any way detracts from our historic dedication to public education. We

are in complete agreement with the conclusion of the three-judge panel below that “the grave significance of education both to the individual and to our society” cannot be doubted. But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. * * *

* * * * * * It is not the province of this Court to create substantive constitutional rights in the name of

guaranteeing equal protection of the laws. Thus, the key to discovering whether education is “fundamental” is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. * * *

Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education will not alone cause this Court to depart

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from the usual standard for reviewing a State’s social and economic legislation. It is appellees’ contention, however, that education is distinguishable from other services and benefits provided by the State because it bears a peculiarly close relationship to other rights and liberties accorded protection under the Constitution. Specifically, they insist that education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote. In asserting a nexus between speech and education, appellees urge that the right to speak is meaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively. The “marketplace of ideas” is an empty forum for those lacking basic communicative tools. Likewise, they argue that the corollary right to receive information becomes little more than a hollow privilege when the recipient has not been taught to read, assimilate, and utilize available knowledge.

* * * Even if it were conceded that some identifiable quantum of education is a constitutionally protected

prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provides an education that falls short. Whatever merit appellees’ argument might have if a State’s financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved and where—as is true in the present case—no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.

Furthermore, the logical limitations on appellees&#x2

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