In this classic Kappan article, Arthur Wise reviews the constitutional case for changing inequitable school finance systems.
Within nearly every state there are wide disparities in the amounts of money spent for the education of children in the public schools. Some children receive the benefits of an education costing several times that received by others. For example, in 1967 per pupil expenditures in California ranged from $274 to $1,710 and in Michigan from $394 to $915. These dollar differences measure rather directly the quantity and quality of services which schools provide. As early as 1965, it had become clear that a constitutional challenge to inequities in school finance could be made.1
Variation in educational opportunity arises from the way states finance public education. In nearly all states, statutes place primary reliance for financing schools on the local property tax. The local school district is empowered to levy taxes on the local tax base. Within limitations, the local school district is free to raise as much in taxes as is politically feasible. Educational opportunity is, then, very largely a function of the local assessed valuation per pupil.
Indeed, it is generally true that poor school districts tax themselves at a higher rate than do rich school districts. However, these higher tax rates do not compensate for the deficiencies in the local tax base. Moreover, state aid equalization disbursements fail by design to compensate for the differences in local taxable capacity.
In short, the operation of school finance programs fails to provide even an approximation to equality in school support. And, it may be argued, the least is being provided where it is needed most. Equality of educational opportunity in the United States is a myth.
The question we raise is whether the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States compels a state to afford equal educational opportunity to all students attending the public schools within that state without regard to where they live or the wealth of their local community.
Because state legislatures have refused to confront the problem, the issue is ripe for judicial action. The situation is directly comparable to that which led the Supreme Court to assume jurisdiction over legislative apportionment. For at least 50 years prior to reapportionment, state legislatures struggled with the periodic reapportionment which was mandated by their own constitutions. These attempts failed for a variety of political reasons. Similarly, for at least 50 years, state legislatures have struggled with the equalization of educational expenditures. State legislatures are generally charged by their own state constitutions with the responsibility for establishing “a uniform system of public schools.” To expect state legislators to vote for programs which do not yield direct benefits to their own constituents is unrealistic, as can be seen in the fact that few equalization programs are passed which fail to provide some revenue to even the wealthiest districts.
The operation of school finance programs fails to provide even an approximation to equality in school support. And, it may be argued, the least is being provided where it is needed most.
In effect, a state’s school finance statutes embody a de facto classification of the students in the state on the basis of the school district where they happen to reside. This classification, explicitly on the basis of school districts and implicitly on the basis of local assessed valuation per pupil, largely determines the quality of educational opportunity the student is to receive.
The U .S. Constitution allows states to classify. Generally, however, the Supreme Court has ruled that a classification to be reasonable must be related to the purpose of the law. The question becomes: Is the classification of students according to the tax base where they live sufficiently related to the purpose of the law to be considered reasonable?
The logic of the case for equal educational opportunity is to be found in three lines of Supreme Court decisions. These cases enunciate general principles which, while not controlling in the present instance, at least indicate how the Court might approach the problem of inequality in education. Limitations of space do not permit the full development of the legal argument; we will only show the framework within which it can be developed.2
The school desegregation cases, especially Brown v. Board of Education3 in 1954, began to define public education as a constitutional right which fell within the scope of the Equal Protection Clause:
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education in our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.4
Of course, the Court was here attempting to establish the proposition that discrimination in education by the state may not be based on color. In an attempt to avoid desegregation, officials of one county in Virginia closed the public schools and supported private, segregated schools. At the same time, public schools in all the other counties of the state were being maintained. In Griffin v. County School Board, the Court held:
Whatever nonracial grounds might support a state’s allowing a county to abandon public schools, the object must be a constitutional one, and grounds of race and opposition to desegregation do not qualify as constitutional.5
The state cannot permit differences among school districts when the basis for that difference is race.
The proposition that geography alone cannot form the basis for quantitative differences from one part of a state to another emerges from the reapportionment cases. Here the Court was establishing the principle that historical accidents associated with the boundary lines of local governmental units could not be used to dilute the value of some votes.
The concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. With respect to t he allocation of legislative representation, all voters, as citizens of a state, stand in the same relation regardless of where they live. Any suggested criteria for the differentiation of citizens are insufficient to justify any discrimination as to the weight of their votes, unless relevant to the permissible purposes of legislative apportionment. Since the achievement of fair and effective representation for all citizens is concededly the basic aim of legislative apportionment, we conclude that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators.6
By implication, there may be some criteria which justify differentiation among persons within a state; at least in the case of voting, geography is not one of these.
The third general proposition concerns the irrelevance of wealth to social justice and is based on cases in the area of the administration of one of a state’s services — criminal justice. These cases confronted one kind of discrimination between the rich and the poor in the application of state laws. The landmark case was Griffin v. Illinois.7 The Supreme Court held that an indigent defendant cannot be denied the same opportunity to appeal an adverse judgment that is available to others simply because he cannot afford the price of a transcript of the trial proceedings:
It is true that a state is not required by the federal Constitution to provide appellate courts or a right to appellate review at all. . . . But that is not to say that a state that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty.8
The Griffin rule has been extended to include a wide range of services which the state must make available to indigent defendants. It has become increasingly clear that governmental discrimination may not be based upon wealth, at least in the area of criminal justice.
The general propositions which have emerged from these three lines of cases create a climate within which one can question whether the absence of equal educational opportunity within a state constitutes a denial by that state of the equal protection of its laws.
Of great importance to the present problem, these cases develop the concept of reasonable classification. The concept of equal protection requires the uniform treatment of persons standing in the same relation to the governmental action in question. It does not require that persons different in fact be treated in law as though they were the same. It does require that those who are similar be similarly treated.
What is clear is that the amount of money spent on a child should not depend upon his parents ‘ economic circumstances or his location within the state.
While the method for allocating educational funds must be changed, there must be a rational basis for allocating these funds. What is clear is that the amount of money spent on a child should not depend upon his parents ‘ economic circumstances or his location within the state. Any particular plan for financing public education in a state must meet this criterion. The traditional rhetoric of equal educational opportunity is not helpful. We simply cannot afford to spend enough on every child until he reaches the maximum development of his individual potentialities. There are a variety of approaches to defining equality of educational opportunity. In general, they have as their objective the reduction of the high correlations among socioeconomic status, local assessed valuation per pupil, expenditures per pupil, level of educational services, and student achievement.
If the current system of school finance were declared unconstitutional, it is to be supposed (indeed, hoped) that the Court would develop only a broad standard of equal protection in education. With a broad standard such as “the quality of a child’s education should not depend upon his wealth or location,” state legislatures would be free to experiment with a wide range of plans. It may be supposed further that this would be a period of intense political activity, with the advocates of various interest groups vying for a favored place in the new scheme. Undoubtedly, a variety of plans would emerge from the interactions among political, legislative, and educational forces. Finally, it may be supposed that these plans would be subject to judicial review to ascertain the extent to which they meet the broad standard.
Equality of educational opportunity is a philosophical abstract. A working definition of this term must be administratively feasible. Let me propose one definition which I believe is both administratively feasible and which should satisfy the requirements of equal protection and reasonable classification.
The basic rule would require that there be an approximately equal per pupil expenditure throughout the state. The application of the rule would require that educational resources be allocated so that the maximum discrepancy in per pupil expenditures does not exceed a specified ratio. This approach would be similar to the approach employed in the reapportionment decisions. The courts might require that the maximum variation in per pupil expenditure be no more than two-to-one or one and a half-to-one. Variation can be justified as an accommodation to educational needs, price-level differences, differences in the economies of scale, or, indeed, political expediency.
An adjunct to this rule could be a mechanism to channel additional resources to school districts with high concentrations of students with low academic achievement. This could be accomplished in one of two ways. The first would be to provide an additional sum, say X percent in excess of the basic per pupil amount, to those districts which have a high concentration of families on relief or with earnings below the poverty line. This method is similar to that employed under Title I of the Elementary and Secondary Education Act. The second method would be to provide an additional sum, say X percent in excess of the basic amount, to those districts which have a large number of students who score below the norm on achievement tests.
Equality of educational opportunity — however it is defined — demands revision in school financing. One form of revision would be a plan in which the state collects all school revenues and distributes them to local school districts. These revenues could be collected by means of a state-wide property tax or, as is currently the case with state-aid revenues, by means of a sales tax or income tax. A state-wide system of property taxation would probably release new funds for schools, since districts with high expenditures tend to have low tax rates. In addition, gerrymandering of school districts over the years has resulted in industrial enclaves free from high local taxes.
A second form of revision would be a plan to equalize the tax bases of local school districts by redrawing district lines. As the size of school districts increases, the tax base tends to become equalized; that is, poorer and wealthier residential and industrial areas are brought within the same school district. This kind of plan would involve a reorganization of school control, since smaller districts would necessarily have to be consolidated. Reorganization of school control is a by-product of this plan only and is not a necessary consequence of expenditure equalization. Moreover, it is not clear that substantial equalization of tax bases would occur even with substantial gerrymandering, since, in some states, wealth is widely dispersed geographically.
A third form of revision would involve manipulation of equalization formulas. The reformulation of equalization plans could be made to conform to whatever standards are required. The larger the permissible deviations, of course, the less t h e equalization that is required.
The prognosis for the proposed suit is not clear. The cases undertaken to date have been notably unsuccessful. At the present time it is not unconstitutional for states to spend more money on rich children than on poor children in the public schools. So apparently did the United States Supreme Court conclude on March 24, 1969. The case was Mcinnis v. Ogilvie, on appeal from the United States District Court for the Northern District of Illinois. The Supreme Court’s holding came in its affirmation of the lower court’s ruling. In the history of this litigation we are perhaps at the point today that legislative apportionment was in 1946 when the Supreme Court denied that it could entertain jurisdiction over reapportionment.9 In 1962, the Supreme Court chose to interject itself vigorously into the problems of reapportionment.10 My own prediction is that we will see a decision in favor of the equalization of educational opportunity after a lengthy period of litigation. It behooves educators to prepare for this eventuality before lawyers step into the vacuum.
1Arthur E. Wise, “Is Denial of Equal Educational Opportunity Constitutional?,” Administrator’s Notebook, February, 1965, pp. 1-4; Charles
- Daly (ed.), The Quality of Inequality: Urban and Suburban Public Schools. Chicago: University of Chicago Center for Policy Study, 1968.
2The argument is developed in Arthur E. Wise, Rich Schools, Poor Schools: The Promise of Equal Educational Opportunity. Chicago: University of Chicago Press, 1969. Alternative formulations are also available. See John E. Coons, William H. Clune, Ill, and Stephen D. Sugarman, “Educational Opportunity: A Workable Constitutional Test for State Financial Structures,” California Law Review, April, 1969, pp. 305-421; Harold W. Horowitz and Diana L. Neitring, “Equal Protection Aspects of Inequalities in Public Education and Public Assistance Programs from Place to Place within a State,” UCLA Law Review, April, 1968, pp. 787-816, and David L. Kirp, “The Constitutional Dimensions of Equal Educational Opportunity,” Harvard Educational Review, Fall, 1968, pp. 635-68.
3347 U.S. 483.
4Ibid., p. 493.
5377 U.S. 218, 231 (1964).
6Reynolds v. Sims, 377 U.S. 533, 565-66 (1964).
7351 U.S. 12 (1956).
8Ibid., p. 18.
9Colegrove v. Green, 328 U.S. 549.
10Baker v. Carr, 369 U.S. 186.
Citation: Wise, A.E. (1969). The constitutional challenge to inequities in school finance. Phi Delta Kappan, 51 (3), 145-148.