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Examination and analysis of education finance litigation in the context of judicial review and the utilization of statistical indices of equity /

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Title:
Examination and analysis of education finance litigation in the context of judicial review and the utilization of statistical indices of equity /
Creator:
Lange, George L
Publication Date:
Language:
English
Physical Description:
v, 432 leaves : ill. ; 29 cm.

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Subjects / Keywords:
Education ( jstor )
Education legislation ( jstor )
Educational standards ( jstor )
Equal protection ( jstor )
Finance ( jstor )
Funding ( jstor )
Plaintiffs ( jstor )
Public schools ( jstor )
School districts ( jstor )
Schools ( jstor )
Dissertations, Academic -- Higher Education Administration -- UF ( lcsh )
Higher Education Administration thesis, Ph. D ( lcsh )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Thesis:
Thesis (Ph. D.)--University of Florida, 2005.
Bibliography:
Includes bibliographical references.
General Note:
Printout.
General Note:
Vita.
Statement of Responsibility:
by George L. Lange, Jr.

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University of Florida
Holding Location:
University of Florida
Rights Management:
Copyright [name of dissertation author]. Permission granted to the University of Florida to digitize, archive and distribute this item for non-profit research and educational purposes. Any reuse of this item in excess of fair use or other copyright exemptions requires permission of the copyright holder.
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3397192 ( ALEPH )
AA00006095_00001 ( sobekcm )
778802062 ( OCLC )

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Full Text












EXAMINATION AND ANALYSIS OF EDUCATION FINANCE LITIGATION IN THE
CONTEXT OF JUDICIAL REVIEW AND THE UTILIZATION OF STATISTICAL INDICES
OF EQUITY














By

GEORGE L. LANGE, JR.


DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF
FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY

UNIVERSITY OF FLORIDA


2005




EXAMINATION AND ANALYSIS OF EDUCATION FINANCE LITIGATION IN THE
CONTEXT OF JUDICIAL REVIEW AND THE UTILIZATION OF STATISTICAL INDICES
OF EQUITY
By
GEORGE L. LANGE, JR.
DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF
FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY
UNIVERSITY OF FLORIDA
2005


ACKNOWLEDGMENTS
It is difficult to truly thank all of those individuals who have been instrumental in
assisting the completion of this dissertation and the attainment of a Doctor of Philosophy degree
from the University of Florida. The support that my father and sisters have given me has been
invaluable, as has the input of friends, faculty and fellow students here at the University of
Florida and previously at Slippery Rock University in Pennsylvania and the University of South
Carolina.
In the Department of Educational Leadership, Policy and Foundations, special thanks are
due the department chairman, Dr. James Doud and the graduate advisor, Dr. Katherine Gratto. I
am also indebted to the administrative staff of Angela Rowe, Eileen Swearingen and Barb Yaney
for their assistance. Special thanks are due to the members of my committee, Dr. David S.
Honeyman, Dr. Arthur Newman, and Dr. Richard K. Scher, for their insight, guidance and
support. My committee chair, Dr. R. Craig Wood merits appreciation and acknowledgment that is
beyond that which a few sentences can provide. A consummate professional, he has also served
as a mentor, a guide, and in more ways than he may realize, an inspiration. I shall always be
thankful for having had the opportunity to work with him.
Finally, I am moved to acknowledge those men and women of the Armed Forces of the
United States of America who have, from our nation's founding, given their lives that we may
enjoy the blessings of liberty and freedom. The opportunity that I was presented to pursue an
education in a free and secure nation was purchased with their sacrifice. All that I have done, or
shall ever do, pales in significance.
11


TABLE OF CONTENTS
Page
ACKNOWLEDGEMNTS ii
ABSTRACT iv
CHAPTER
1 INTRODUCTION 1
Notes 9
2 EDUCATION FINANCE: CONTEXT AND BACKGROUND 12
Notes 51
3 THE JUDICIAL BRANCH 62
Notes 116
4 EQUITY 134
Notes 144
5 EDUCATION FINANCE LITIGATION 147
Notes 314
6 SUMMARY 355
Notes 396
APPENDIX
A CASES CITING STATISTICAL INDICES 407
B TABLES OF CASES REFERENCED 411
REFERENCES 417
BIOGRAPHICAL SKETCH 432
in


Abstract of Dissertation Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Doctor of Philosophy
EXAMINATION AND ANALYSIS OF EDUCATION FINANCE LITIGATION IN THE
CONTEXT OF JUDICIAL REVIEW AND THE UTILIZATION OF STATISTICAL INDICES
OF EQUITY
By
George L. Lange, Jr.
August 2005
Chair: R. Craig Wood
Major Department: Educational Leadership, Policy and Foundations
The purpose of this study was fourfold; to examine the explicit utilization of statistical
indices of equity in education finance litigation, a consideration of the same within the context of
the ongoing dialogue addressing judicial activism and the role of the judiciary in American polity,
the possible implications of the findings of the former for the later, and lastly, provision of a
framework with which to further explore education finance, weighing its philosophical
grounding, the larger question of judicial review and the evolution from an appreciation of equity
to one of adequacy. To that end, ninety-seven cases in total were addressed, from Sawyer v.
Gilmore, in 1912 to Hoke County Board of Education v. State, in 2004. Of these cases, seventy-
seven were state high court decisions, nine from state appellate courts, six from federal district
courts, one from a federal circuit court, and six cases before the United States Supreme Court.
The review of the education finance cases herein demonstrated a state jurisprudential stance that
has generally been grounded in Article III doctrine, despite significant institutional,
administrative, and constitutional differences between state and federal couits. Yet, while the
courts have historically carefully guarded application ofjudicial review the emerging judicial
IV


trend exhibits a more aggressive posture, rendering decisions which present with tenuous
constitutional groundings, venture far into the realm of remedial prescription and oversight and
cast the courts as quasi-legislatures that define educational policy and goals, while constraining
fiscal discretion. The study of statistical indices over the course of the litigation record offers a
clear conclusion; few courts have called for complex statistical data and for the most part, at the
appellate level and beyond, simple indices were employed solely to inform the details of a case
but were irrelevant to the philosophical issue and the courts predisposition.
v


CHAPTER 1
INTRODUCTION TO STUDY
School finance is the vehicle through which society makes its critical decisions about investment
in education.1
School finance reform is like a Russian novel; its long, tedious and everyone dies in the end.2
Public education legislation and the question of education finance in the United States
predates independence and the Constitution by nearly 150 years. In 1647 while attempting to
adapt to the new colonial environment, the Massachusetts Bay Colony passed legislation
requiring towns of at least fifty families to hire a teacher and communities of greater than one
hundred families to maintain a grammar school.'1 The subsequent adaptations these arrangements
underwent as societal and political circumstances warranted presaged the constant theme of
change in American educational jurisprudence and legislation. At the forefront of this dynamic
have been the state judiciaries, the application of constitutional textual interpretations and the
calculation of educational equity and adequacy.
The purpose of this study is fourfold; to examine the explicit utilization of statistical
indices of equity in education finance litigation, a consideration of the same within the context of
the ongoing dialogue addressing judicial activism and the role of the judiciary in American polity,
the possible implications of the findings of the former for the later, and lastly, provision of a
framework with which to further explore education finance, weighing its philosophical
grounding, the larger question of judicial review and the evolution from an appreciation of equity
to one of adequacy. To that end, ninety-seven cases in total are addressed, from Sawyer v.
Gilmore,4 in 1912 to Hoke County Board of Education v. State? in 2004. Of these cases, seventy-
seven are state high court decisions, nine from state appellate courts, six from federal district
courts, one from a federal circuit court, and six cases before the United States Supreme Court.
1


2
The research herein is a measured consideration of education finance litigation within the
context of judicial review. In conjunction with this concern, is the identification of the utilization
of statistical indices of equity. This study served to inform the discussion of the role of the
judiciary in American public education, the propriety of that engagement, and the principles
articulated in the concepts of adequacy and equity and the utilization of same in state and federal
jurisprudence. Commenting on the numerous and diverse concepts of judicial review, Canon
observed that it is a central if not well-informed feature of the American system. As such it has
long been subject to both political polemics and scholarly analysis...thus, the concept...has little
common meaning; it has encompassed whatever a given writer or reader conveyed or inferred.6
This indeterminancy is exacerbated at the state level given that the contemplation of judicial
review and constitutional interpretive theory, and characterizations of courts and jurists as activist
or restrained in reference to education finance litigation must be drawn through the prism of state
courts and constitutions. Following the construction of that prism both in a broad treatment of
review in the context of Article III courts and also state judiciaries, this study attempted to place
education finance litigation in toto along the continuum of judicial activism and restraint. To that
end, it delineated characteristics of those courts evidencing at either end within the context of
state jurisprudence. A second goal is an identification of judicial trends, reflecting recent
decisions, the construct of judicial federalism, and possible implications for the design and
administration of education policy. Thirdly, does there exist a correlation between the specific
utilization of statistical indices of equity and a judiciaries embrace of either an activist or
restrained posture. An ancillary design of this study is the provision of a resource addressing
school finance litigation, current scholarly appreciations, and a unique, detailed treatment of the
major cases in the field; this in addition to a broad treatment of judicial review, its historic and
philosophic antecedents and the major schools of constitutional interpretational theory and their
proponents.


3
The genesis of this study was spurred by an evolving judicial embrace of adequacy in
education finance litigation. Whereas statistical indices of equity provide distinct parameters, the
adequacy theory requires courts to define a remedial role relative to the legislative and executive
branches thus generating questions of judicial review, particularly separation of powers, political
questions doctrine, and judicial competence. Further, the adequacy cases call upon the courts to
define the purpose of education and interject the judiciary into administration and oversight. The
significant implications for education and fiscal policy, the perception and legitimacy of the
courts, and the political and economic importance of public education necessitate a work of this
nature in order to inform the consideration for the legal community, educators, legislators, and the
public; a calculation not of whether the courts will participate in the constitutional and policy
dialogue, but of what form of participation bests serves the educational needs of the individual
student, the states, and the nation. The expanded role state courts have assumed in education
finance under judicial federalism calls for a contemplation of the legitimate breadth of judicial
power, particularly in the state constitutional systems. As this study concluded, sixteen states
were embroiled in litigation challenging the public education finance distribution formula. It has
been marked that in reference to education finance litigation, the momentum has distinctly shifted
in favor of plaintiffs challenging the state on adequacy grounds.7 Heise has marked that the
more theoretical and abstract questions raised by judicially-mandated school finance reform,
draw attention to the broader contemplation of the role of the judiciary in a democratic society.8
Substantively, state spending regarding public education accounts for one of the largest segments
of its annual budget and court rulings impacting education finance influence allocations to other
areas. Numerous institutions are involved in the funding of public education and, in conjunction
with a number of social and political variables, make any initiative to influence education finance
difficult to construct and gauge. A host of studies had demonstrated the uncertainty over what
effect the interjection of the judiciary has upon educational spending and quality, and the
propriety of the an ever increasing judicial profile. Absent in these studies was reference to the


4
unique state judicial and constitutional context within which these decisions were generated, the
constitutional interpretive theory employed, and the utilization of statistical indices of equity and
the presence or absence of a correlation of same to the courts treatment of judicial review and the
constitutional text.9
Further underscoring the necessity of an informed consideration of the role of the
judiciaiy, constitutional theories utilized, and the treatment of adequacy and equity, are the
widespread concerns currently presenting in regards to the current state of American public
education. In a nation that embraces a concept of meritocracy, the premise that all children are
entitled to an adequate education that prepares them for active, informed participation in a
democratic society is beyond dispute. Not as clear is what exactly entails an adequate education
and to which institution should that determination be entrusted. Contributing to the urgency of
that calculation in a nation that likes to consider itself the embodiment of meritocracy is, as the
The Economist recently found, a growing body of evidence [that] suggests that the meritocratic
idea is in trouble in America.10 The study found that as income disparity grew to unprecedented
levels, social mobility stagnated, a development that may presage the United States calcifying
into a European-style class-based society.11 Cited as a major contributory factor was the
education system; operating on the premise that upward mobility has become increasingly
determined by education, the work found that the education system has become stratified by
social class and disparate funding.12 Hochschiled recently observed that during the 1970s, four in
ten Americans expressed a great deal of confidence in public education, a percentage that had
fallen to less than one quarter as the Twentieth Century drew to a close.13 She noted that the
percentage of Americans who believed that education was the most important problem facing the
country rose from 2 to 13 percent.14 In light of these concerns, the 36th Annual Phi Delta
Kappa/Gallup Poll of the Public Attitudes Toward the Public Schools1 in 2004 found that nearly
one quarter of the American public now believed that lack of financial support represented the
greatest impediment to improving education, while half of the nation rated public schools


5
mediocre as best.16 However, in the fall of 2004 voters expressed caution regarding any increase
in public education financing, as a score of state initiatives to increase school funding were
defeated.17 John G. Matsusaka, president of the Initiative and Referendum Institute at the
University of Southern California found that while voters were willing to increase funding for
health care and other social programs, they were reluctant to do so for education, concluding it
was a bad day for education.18 Reflecting the specter of education finance litigation as a Sword
of Damocles, voters in Alabama defeated a referendum that would have removed language from
the 1901 state constitution that required segregated schools and poll taxes to pay for education.
Opposition to the initiative, however, was spurred by the additional proposal to remove a passage
stating that nothing in the state constitution mandated any right to education or training at public
expense. According to opponents, the removal of the phrase in question would increase the
states vulnerability to education finance lawsuits. One observer marked that when you swing
that door open, there is unlimited opportunity for mischief...its a trial lawyers dream.19
The presence of a skeptical and conflicted public in reference to education also presents
in the perception of judiciary. As noted, the involvement of the judiciary in the construction and
oversight of education and fiscal policy has the potential to place the courts squarely within
political maelstrom, calling into question judicial legitimacy and threatening judicial
independence. G. Alan Tarr, recently addressed the matter, commenting that the recent general
decline in public confidence in the judiciary reflected developments within the legal community;
particularly the fact that the concept of judicial fidelity to the law' has been complicated by the
absence of consensus as to how the law is interpreted and the delineation of the exercise apart
from legislating.20 Hensler noted an increased skepticism regarding the impartiality of the
administration of justice; a heightened perception that judicial decisions are not based upon the
legal merits, thereby weakening the rule of law and arguments for judicial independence.21 Given
that education finance litigation entertains constitutional texts which do not provide unambiguous
or dispositive guidelines, the judicial concerns are particularly germane to their contemplation.


6
Considering the increasing success o advocates of increased education funding in the
courts, Hunter observed that it does feel to us when we have a major win that just builds
momentum.22 Lindseth opined that there's sort of a bandwagon effect, courts are looking at
whats happening in other states, and theyre jumping on the bandwagon.23 This trend
underscores the timeliness of the consideration this study seeks to inform, particularly in light of
the recent decisions from Wisconsin,24 New York,25 and Massachusetts;'6 cases detailed, infra
test.
The momentum of these cases presents as a limitation to this study. As this work was
being completed, decisions from the state high courts in Kansas, Massachusetts, and Montana
were pending, and adequacy cases were being initiated in Arizona, Nebraska, Georgia, Missouri
and Kentucky.27 Wood and Thompson have noted that the dynamics of contemporary education
finance litigation make it virtually impossible to present an accurate account of all actions before
every trial court.28 In addition, within the treatment of public school funding, the term education
finance litigation refers to those cases which challenge the method under which the state funds
education on federal and/or state constitutional grounds. While that serves to limit the scope of
consideration, a further restraint was introduced in confining the study to cases generated at the
appellate level.29 It is also necessary at the juncture to qualify that the author does not propose to
introduce a critique of recently enacted school reform legislation in response to judicial mandate.
Rather than entertaining the efficacy of an activist or restrained judiciary, the study is restricted to
the issues raised by court involvement or lack thereof; considered within the context of unique
state constitutions and judiciaries, the concepts of equity' and adequacy, and the implications for
education policy and state political and legislative processes.
This study was designed primarily as a review of relevant state caselaw. Significant
federal caselaw was also examined, in order to illuminate Article III court doctrine in reference to
review and the precedential value these cases have had for adjudication at the state level. The
emphasis in this research was on primary source materials, namely published federal and state


7
court decisions. A wide variety of secondary sources were also consulted and evaluated in order
to provide background for this work and for the construction of the contextual frame of reference
for judicial review and equity and the interpretation of primary sources.
The most challenging and extensive research invested in this study was devoted to the
identification of pertinent primary sources in the form of reported case decisions. A variety of
tools and methods were used to achieve the most comprehensive results. An invaluable initial
source of education finance litigation cases was R. Craig Wood and David Thompsons
Education Finance Law: Constitutional Challenges to State Aid PlansAn Analysis of
Strategies.30 Wests Education Law Reporter Digest31 was also another key source. All issues of
this index were researched under both key word and key numbers. Key terms included School
Finance, Education Finance, Public Schools, and Public Education. All indicated case
references then were referenced manually in either the Education Law Reporter32 or the original
case reporter. A similar exercise was conducted utilizing the LEXIS/NEXIS" system. Primarily
used to access more recent case decisions, those already in print were referenced manually from
the appropriate case reporter. The website of ACCESS.34 also proved invaluable in identifying
past education finance litigation and current legal initiatives. In addition, after identifying cases
from the aforementioned, the decisions were reviewed individually for references for related
cases not located in the initial searches. Secondary' sources were utilized in a similar fashion.
The majority of the cases were cited from the legal reporters compiled by the Wests
National Reporter System, including the federal and regional reporters.35 In those instances when
the decisions were not available from the reporters, then specific state reporters were referenced.36
The citation source within the text for this study was The Bluebook: A Uniform System of
Citation.37 and The Chicago Manual of Style 38 was referenced for the bibliographical entries.
A wide variety of secondary sources were utilized in this study. Texts and books were
located through the University of Florida George A. Smathers Library On-Line Catalogue,39
which also allowed access to other academic libraries. Journal articles were located through a


8
variety of sources, including the U.F. On-Line Catalogue (which included the E-Journal Locator,
the Index to Legal Periodicals, and the Eric system) and LEXIS/NEXIS.40 Works and journal
articles secured were also examined for further references therein. A search was also conducted
in Pro-Quest Digital Dissertations,41 which found no unpublished dissertations similar to this
work or of direct assistance.
This study represented an effort to place education finance litigation within the context of
judicial review, consider the application of statistical indices of equity in these cases, and provide
background and information in both the realms of school finance and judicial review in order to
inform the concerns of a variety of users, and facilitate access to the litigation record. To that end,
this work is divided into six chapters. Chapter 1 provides an overview of the study, a discussion
of the need for the study, limitations, methods and materials utilized, and organization. Chapter 2
is devoted to education finance, particularly its historical and philosophical antecedents, and a
review of the literature in the field. Chapter 3 is focused upon the judiciary, notably the question
of judicial review and the development of the concept in American jurisprudence; the positions of
proponents and advocates reflected in both the scholarly and popular literature; the doctrine as
applied in Article III courts; and the unique nature of state constitutions and judiciaries in order to
frame the consideration of activism in state jurisprudence. Chapter 4 addresses equity,
particularly in reference to education and the characteristics and application of statistical indices.
Chapter 5 is a chronological review of education finance litigation, from 1912 through 2004. The
final chapter is a summary of findings, citation of cases presenting as activist or restrained, and a
consideration of possible implications for further litigation and the design and administration of
education policy.42


9
Notes
1 William Clune, New Answers to Hard Questions by Rodriquez: Ending the Separation of School
Finance and Educational Policy by Bridging the Gap Between Wrong and Remedy, in, 25 CONN LAW P_EV.
721,755 (1992).
2 Mark Yudof, School Finance Reform in Texas: The Edgewood Saga, in, 28 Harvard JOURNAL
ON LEGiSLATiON 499 (1991).
3 W.E. Sparkman, The Legal Foundation of Public School Finance, in, 35 BOSTON La V/ REV. 570,
571 (1996).
4 83 A. 673 (Maine 1912).
5 599 S.E.2d 365 (N.C. 2004).
5 Bradley C. Canon, A Framework for the Analysis of Judicial Activism, in, Supreme Court
Activism and Restraint 385 (Stephen Halpem & Charles Lamb, eds. D.C. Heath, 1982).
' David Hoff, States on Ropes in Finance Lawsuits, in, EDUCATION WEEK 15 (Dec. 8, 2004).
8 Michael Heise, 1997 Winston S. Howard Distinguished Lecture; Schoolhouses, Courthouses,
and Statehouses: Educational Finance, Constitutional Structure, and the Separation of Powers Doctrine,
in, 33 Land & Water Law Rev. 281 (1998).
9 See, e g., Paul Minorini & Steve Sugarman, Educational Adequacy and the Courts: The Promise
and Problems of moving to a New Paradigm, in, Equity and Adequacy in Education Finance 173 (H. Ladd,
et al., eds. National Academy Press, 1999); Mark Rebell, Educational Adequacy, Democracy and the
Courts, in, Achieving High Educational Standards for All: Conference Summary 218 (T. Ready, et al., eds.
National Academy Press, 2002); D. Verstegen, Judicial Analysis During the New Wave of School Finance
Litigation, in, 24 JOURNAL OF Education Finance 2,51 (1998); William Colwell, Judicial Review: Issues
of State Court Involvement in School Finance Litigation, in, 24 JOURNAL OF EDUCATION FINANCE 2 (1998);
James Dayton, Examining the Efficacy of Judicial Involvement in Public School Funding Reform, in, 22
Journal of Education Finance 1 (1996); Michael Heise, State Constitutional Litigation, Education
Finance, and Legal Impact: An Empirical Analysis, in, 63 U. OF CONN. Law Rev. 1735 (1995); James
Cohen, Judicial Control of the PurseSchool Finance Litigation in the Courts, in, 28 WAYNE LAW Rev.
1393 (1982); James Ward, Implementation and Monitoring of Judicial Analysis, in, The Impacts of
Litigation and Legislation on Public School Finance: Adequacy. Equity and Excellence 225 (J. Underwood
& D. Verstegen, eds., Harper and Row, 1998); William Fischel, School Finance Litigation and Property
Tax Revolts: How Undermining Local Control Turns Voters Away from Public Education, in,
Developments in School Finance. 1999-2000 79 (Fowler, ed National Center for Education Statistics,
2000); B. Joondeph, The Good, the Bad, and the Ugly: An Empirical Analysis of Litigation Prompted
School Finance Reform, in, 35 Santa Clara Law Rev. 763 (1994); R. Manwaring & S. Sheffrin,
Litigation, School Finance Reform, and Aggregate Educational Spending, in, 2 INTERNATIONAL, Tax and
Public finance 107 (1972); D. Thompson & F. Crampton, The Impact of School Finance Litigation: A
Long View, in, 27 JOURNAL OF EDUCATION FINANCE 133 (2002);
10 Ever Higher Society, Ever Harder to Ascend-Meritocracy in America, in, The ECONOMIST (Jan
1,2005), available at,
http://web.lexisnexis.com/iiniverse/document? m=fa9a8052e06d8596662108141494a38& docnum=l&wc
hp+dGLbVzz-zSKVA& ir,d5 aea78010fc05 at 1.
li
Id


10
12 Id. at *2; The study also noted that these poorer districts were plagued by an aversion to the
introduction of measures of accountability, merit pay for teachers, and incentives for outstanding students;
contributing to the creation of dumbed-down schools, id.
13 Jennifer Hochschiled, The Poll-Trends: Governance & Reform of Public Education, in, 62 PUB.
Opinion Q. 79 (1998).
14 Id. at 80.
15 36th Annual Phi Delta Kappa/Gallup Poil of the Public Attitudes Toward the Public Schools
(2004) available at, http://www.pdkintl.org/kappan/k0409pol.htm
'6Id.
17 See, Table: Ballot Measures, available at,
http://www.edweek.Org/ew/articles/2004/l 1/10/11 iniitiatives-sl.h.24.html: Tax reform and school spending
measures designed to increase funding for pubic education were defeated in Alabama, Arkansas, Nevada,
and Washington. Voters in California approved a measure preventing the state from setting local property
tax rates for funding education, while in Louisiana property-tax exemptions were increased for primary
residence. In North Carolina, voters did approve of the allocation from fines and civil penalties, while in
Colorado, an initiative dedicating sixteen percent from an increase in cigarette taxes to education was
approved.
18 David Hoff & Andrew Trotter, Voters Largely Reject Funding, Policy Shifts, in, Education
WEEK 24 (Nov. 10, 2004) (citing John G. Matsusaka).
19 Id. at 27.
20 G. Allan Tarr, State Judicial Selection and Judicial Independence, in, Commission on the 21st
Century Judiciary Appendix D, 9 (ABA, 2003).
21
Deborah Hensler, Do We Need an Empirical Research Agenda on Judicial Independence? in, 72
So. Cal Law Rev. 707 (1999).
'2 Hoff, supra note 7 at 15 (citing Molly Hunter of the Advocacy Center for Childrens Education
Success with Standards).
"3 Id. at 16 (citing Alfred A. Lindseth of the law firm of Sutherland, Asbill & Brennan that is often
called upon to represent states in education finance cases).
24 Vincent v. Voight, 614 N.W.2d 388 (Wis. 2000).
25 Campaign for Fiscal Equity, Inc. v. State, 769 N.Y.S.2d 106 (N.Y. 2003).
26 Hancock v. Driscoll, 2004 Mass. Super. LEXIS i 18 (Mass. Supp. 2004).
See, Hoff, supra note 7.
28 R. Craig Wood & David C. Thompson. Education F inance Law: Constitutional Challenges to
State Aid PlansAn Analysis of Strategies 98 (2nd NOLPE, 1996).
9 The study was confined to the appellate level primarily due to the general inaccessibility of the
trial court record and the design to present a concise, yet comprehensive chronological r ecord that could be
referenced in a relatively timely fashion.


11
30 Wood, supra note 27.
31 Wests Education Law Reporter Digest ( West Publishing Company, i983-).
32 Id.
3 http://web.lexis-nexis.com/universe.
j4 A national project of the Campaign for Fiscal Equity, Inc., retrieval at,
http://www.accessdnetwork.org/.
35 The regional reporters record state court decisions.
36 The only state cases not generally found in the regional reporters were from states with
extensive state litigation, namely New York and California.
37 Harvard Law Review Association, The Bluebook: A Uniform System of Citation (17th ed.
Harvard Law Review Association 2002).
38 The University of Chicago, The Chicago Manual of Style (14th ed. University of Chicago Press
1993).
39 http://www.uflib.uf1.edu/.
40 Supra note 10.
41
http :/?w ww lib .umi.com/d issertations/gatewav.


CHAPTER 2
EDUCATION FINANCE: BACKGROUND AND CONTEXT
Public school finance policies and the quest for school finance reform result
from, and are embedded in, the basic value conflicts in American life and need to
be understood in that context. The struggle for equity and justice in financing
public schools has been influenced and guided by fundamental values conflict in
American society and emerging policies result from tentative and temporary
consensuses that have been reached at any point of time.1
Public education in America has been a mirror of the nations concerns and aspirations.
R. L. Johns observed that though it dates from Seventeenth Century New England, its genesis was
not spurred by concerns for altruistic, humanistic, or economic interests, but rather to defeat, ye
olde deluder Satan.2 From its inception through the early Nineteenth Century, education was
considered to be primarily a church and/or family responsibility. Although the first property tax
for local schools was levied in Dedham, Massachusetts in 1648 and New Hampshire required
local taxation to support elementary schools in 1693,3 support for early schools came from a
variety of sources. Bailyn marks that in the colonial period, financing of public schools was
achieved through a blending of local resources: local taxation of property, philanthropy and
charitable gifts, and the use of public utilities such as ferries and mills, among other sources.4
State aid for local schools emerged in New York as the Eighteenth Century drew to a close and
was codified into law in 1812 with flat allocations of fiscal aid designed to stimulate local effort.
However any question of equalization or how to address local discrepancies in fiscal capacity did
not present until mid-century as it became apparent that the degree of local support varied
considerably from locale to locale.5
As the common school movement gained traction under Horace Mann of Massachusetts
and Henry Barnard of Connecticut it soon became apparent that one of the most daunting
challenges was establishing the principle of free public education. Making the case years earlier
12


13
in Britain, economist William Petty wrote in 1662 that education should be a publick charge,
given the benefits that would accrue to society as a whole. In appraising Seventeenth Century
England, Petty saw far too many lawyers, doctors, and preachers and believed that if the
government were to finance education it could cut the number of parishes in half, reduce the
number of lawyers by ninety-nine percent and extinguish that infinite swarm of vain pretenders
unto, and abusers of [medicine].6 Economic historian Earnest Johnson suggested that Pettys
general attitude (if not his disdain for particular professions) was typical of early economists, who
felt that society would improve in various ways if the state would take an active hand in
education.7 However in America the concept of a free public education was considered a radical
step. Regarding the argument for the establishment of public schools, Johns remarked that I have
not been able to find any authentic documents published between 1830 and 1860 in which it is
argued that children have a right to a free public education.8 Church schools, dame schools, and
one room school houses supported in small measure by local taxes augmented by private
financing and tuition generally represented the breadth of provision of education in the early
republic. In terms of administration, each small town functioned in effect as a school district,
although in the urban centers larger school systems began to emerge. Spurred by the realization
that education was vital in the new nation and illuminated by a nascent common school
movement, initiatives were undertaken to create statewide systems of oversight and coordinated
programs of local support. Odden and Picus have marked that, by 1820, 13 of the then 23 states
had constitutional provisions, and 17 had statutory provisions pertaining to public education.9 In
addition, they note that as control in the common school era slowly moved from the church and
family to local lay boards of education, by the mid tc late 1800s most states required local
districts to fully finance mandated public schools through local property taxes.10 This
development, although meager, was a far cry' from the patchwork method of funding schools
witnessed hitherto. Although not generally considered a state responsibility, there was a growing
tendency before the Civil War for states to maintain what were termed permanent endowments


14
that were earmarked specifically for public schools.'! Historian Steven Rippa, assessing these
funds, observed that:
[T]hey were first established by those older states that did not snare in the
congressional land grants. Consisting largely of miscellaneous revenues derived
from escheats (or fines), liquor licenses, marriage fees, and other sources, the
earliest school funds were small and were usually allowed to accumulate before
being apportioned to the schools.12
The funding programs hoped to encourage local effort by tying apportionment to the
institution of voluntary local revenue generating initiatives. States soon took steps to provide for
local support by disbursing funds solely on a matching basis. First adopted in New York in 1805
it was soon patterned across the young republic. However, it quickly became apparent that the
permanent endowments and the hoped for local support were not dependable sources of revenue.
In response, Rippa writes that the states passed laws permitting the local districts to tax
themselves for public schools if the people voted for the tax levy. But every effort toward
taxation was hotly contested by the local citizens. Later, most states found it necessary to enact
laws forcing the local districts to tax themselves up to a limited point for school support.13 Yet,
in the main, the support of education was dependant upon revenue generated through the
collection of tuition from individual families.
Pauper school laws throughout the northeast provided for the funding of education for
children of the poor, not an insignificant portion of the population. These statutes required parents
declare themselves publicly as paupers before tuition from the state was provided to allow their
children to attend the nearest public school. Special funds, much like the permanent endowments,
were created for these cases, derived in much the same manner as revenue collected for other
public needs. However, very few parents were inclined to identify themselves as paupers in order
to warrant that charity. These factors conspired to ensure that few students were actually enrolled
in what public education was available. It has been estimated that by 1828 over half of the
400,000 children in the state of Pennsylvania were not enrolled in any form of schooling.14


15
An example of state response to these dynamics was the Pennsylvania Free School Act of
1834. The legislative initiative was the direct result of the efforts of common school advocates
who had sustained a long campaign to eliminate the pauper school laws, reduce the dependence
on tuition and create a statewide education system. The act created 987 rural and urban school
districts, which were to hold election to determine if the citizenry would accept the provisions of
the act, particularly the targeted local tax levy. Those districts that declined were to continue
under the old miscellaneous funding schemes, i.e., pauper school laws. Contemporary accounts
mark that the response to the measure was so divisive that towns, churches, and families split on
the issue.15
A move to repeal the legislative decree was begun almost immediately. In support,
Thaddeus Stevens addressed the Pennsylvania House of Representatives on April 11, 1835. In
remarks that present as a harbinger of the adequacy argument, Stevens asserted that:
[I]f an elective republic is to endure for any great length of time, every elector
must have sufficient information, not only to accumulate wealth, and take care of
pecuniary concerns, but to direct wisely the legislatures, the ambassadors, and the
executive of the nationfor some part of all these things, some agency in
approving or disapproving of them, falls to every freeman. If they, the
permanency of our government depends upon such knowledge, it is the duty of
the government to see that the means of information be diffused to every' citizen.
This is a sufficient answer to those who deem education is a private and not a
public dutywho argue that they were willing to educate their own children, but
not their neighbors children.16
Perhaps due to Stevens eloquent defense of tax supported public schools, the initiative to
repeal was defeated, however funding for schools remained haphazard and vulnerable to local
proclivities in addition to fiscal capacity. Any concept of equalization or equal educational
opportunity was foreign to any district or legislature, as the prevailing political and legal doctrine
of the Nineteenth Century was premised on the appreciation of taxation neutrality. Horwitz
remarks that the po wer of taxation presented the most formidable difficulties for nineteenth
century [sic] jurists intent upon establishing a neutral state by limiting the redistributive capacities
of government.17 Although the principle of using tax revenue for public schools had been


16
established if not publicly embraced, the main concern of the courts was the maintenance of
property rights and any initiative or policy that attempted to redistribute resources was considered
a threat to liberty and property.18 Of the era, Ward had written, [a]t the close of the nineteenth
century, [sic] prevailing legal doctrine is clearly supportive of taxation for the purposes of raising
revenues for public schools, but is not supportive of taxation for redistributive puiposes that
would permit equalization and is very protective of the economic rights of the affluent.19 Despite
these limitations, from 1830 to 1860 support for public education spread from the northeast to the
middle-western and western states. However, the aforementioned authorizations to levy school
taxes did not ensure that such levies were enacted and the universal provision of a free public
education remained an ideal. Johns has noted that:
The Seventh Census of the United States shows that only [one-half] of the
children of the New England states were provided free education, [one-sixth] of
the Western states and [one-seventh] of the Middle states by 1850. In the
Southern states almost no free tax supported schools were available except for
paupers.20
The courts while protective of property rights and concerned with reining in any impulse
to redistribute tax revenues, were generally silent on the specific question of funding schools.
When they did reference education, they reinforced the status quo. In Plessy v. Ferguson,2'' a case
addressing separate public transportation facilities based on race in Louisiana, the Supreme Court
countenanced the prevailing separate but equal provision of education. The opinion, referencing
the concept of separate but equal noted that the most common instance of this is connected
with the establishment of separate schools for white and colored children, which has been held to
be a valid exercise of legislative power even by courts of States where the political rights of the
colored race has been longest and most earnestly enforced.22 Of the decision's educational
ramifications, Wood and Thompson have pointed out that [t]he first significant and specific
public school suit based on the Plessy doctrine occurred in Cummings v. Richmond in 1899.23 In
the first case dealing with the funding of public education to come before the Supreme Court, a
county school board in Georgia refused to provide a high school for African-American students,


17
despite the fact that such an institution was provided for white students. While the school board
argued that it could not afford two such schools, the 'plaintiffs argued that either a school for
minority children would have to be created or that the school for white children would have to be
closed.24 The Court, in finding for the defendants, wrote that:
If that were done, the results would only be to take from the white children
educational privileges enjoyed by them, without giving to colored children
additional opportunities for the education furnished in high schools. The colored
children of the county would not be advanced in the matter of their education by
a decree compelling the defendant board to cease giving support to a high school
for white children.25
In distinguishing between a nonarbitrary denial of equal treatment and a hostile denial of equal
treatment, the Plessy and Cummings decisions underscored the Courts thinking in reference to
the Fourteenth Amendment over the course of the next half century.26
The first conceptualization of equity in education finance to enter into this legal and
legislative paradigm was woven by Ellwood Cubberley in 1905. In his now classic doctoral
dissertation, School Funds and Their Apportionment,2' Cubberiey offered a fundamental theory
of school finance, writing that:
Theoretically, all children of the state are equally important and are entitled to
have the same advantages; practically this can never be quite true. The duty of
the state is to secure for all as high a minimum of good instruction as is possible,
but not to reduce all to this minimum; to equalize the advantages to all as nearly
as can be done with the resources at hand; to place a premium on those local
efforts which will enable communities to rise above the legal minimum as far as
possible; and to encourage communities to extend their educational energies to
new and desirable undertakings.28
Maintaining that it was incumbent on the state to provide for the highest level of education
possible for all children, Cubberley did concede that the equality of all children was not possible
to sustain in a public education system.29 In advocating a flat grant or a form of minimal
guarantee, he observed:
1. That due to the unequal distribution of wealth, the demands set by the states
for maintaining minimum standards cause very unequal burdens. What one
community can do with ease is often an excessive burden for another.
2. That the excessive burden of communities borne in large part for the
common good should be equalized by the state.


18
3. That a state school tax equalizes the burden.
4. That any form of state taxation for schools fails to accomplish the ends for
which it was created unless a wise system of distribution is provided.30
Harland Updegraff of the University of Pennsylvania offered the next significant
contribution to a theoretical construct of school finance. In 1922 Updegraff amplified
Cubberleys thesis:
[Advancing the concept that as local school districts were able to spend greater
moneys for public education, the state would then vary the amount of state
support as a result of these local efforts. Updegraff argued that every child could
be assured a minimum level of education in relation to the levels that other
children received regardless of their location within a given state.31
In a survey he made of rural schools in 1921, Updegraff proposed that the wealth of the local
school district be entirely eliminated as a factor affecting the quality of a childs education. In
Rural School Survey of New York State: Financial Support.32 Updegraff s study proffered that
the quality of a childs education be made dependant upon local effort but that the state should
equalize educational opportunity with state funds so that the total amount of revenue per teacher
unit would be the same in all districts making the same effort regardless of variations in
wealth.33
While Cubberley and Updegraff wrote, states had begun to introduce statutes requiring
each locality to have at least an elementary school and correspondingly made provision for a
lump sum, or flat grant, from state coffers to be distributed per school. Of this funding scheme
that had dated in some locales from the middle of the Nineteenth Century, Odden and Picus noted
this approach remedied the problem of the poorest locality being unable to create a school on its
own; in these communities, state funds often became the only fiscal support for the school.34
During the 1920s the state of New York created a commission to explore the possibility of
establishing a new education finance structure that went beyond the flat grant. A former
classmate of Cubberleys, George D. Strayer of Columbia, and his colleague Roger Haig were
hired as consultants to the commission. Their work produced a formula that would come to
dominate school finance through the Twentieth Century; a foundation plan that attempted to


19
provide a minimum program for the funding of schools. In the Report of the Educational Finance
Inquiry Commission. Yol. I.35 Strayer and Haig wrote:
There exists today and has existed for many years a movement which has come
to be known as the equalization of education opportunity or the equalization
of school support. These phrases are interpreted in various ways. In its most
extreme form the interpretation is somewhat as follows: The state should insure
equal education facilities to every child within its borders at a uniform effort
throughout the state in terms of the burden of taxation; the tax burden of
education should throughout the state be uniform in relation to taxpaying ability,
and the provision for schools should be uniform in relation to the educable
population desiring education. Most of the supporters of this proposition,
however, would not preclude any particular community from offering at its own
expense a particularly rich and costly educational program. They would insist
that there be an adequate minimum offered everywhere, the expense of which
should be considered a prior claim on the states economic resources/6
The principles of a state model Strayer and Haig proposed included:
1. A local school tax in support of the satisfactory minimum offering would be
levied in each district at a rate which would provide the necessary funds for
that purpose in the richest district.
2. The richest district then might raise all of its school money by means of the
local tax, assuming that a satisfactory tax, capable of being locally
administered could be devised.
3. Every other district would be permitted to levy a local tax at the same rate
and apply the proceeds toward the cost of schools.
4. [But] since the rate is uniform, this tax would be sufficient to meet the costs
only in the richest district and the deficiencies would be made up by the state
subventions.37
Under this theoretical design, essentially proposing a guaranteed tax yield, it would be
possible for a school district not to receive any aid from the state. Although their work did
operationalize much of the earlier educational finance research through the provision of a
foundation plan, Strayer and Haig did stake a philosophical reorientation.38 In a departure from
the reward for local tax effort advocated by Cubberley and Updegraff, they asserted that:
Any formula which attempts to accomplish the double purpose of equalizing
resources and rewarding effort must contain elements which are mutually
inconsistent. It would appear to be more rational to seek to achieve local
adherence to proper education standards by methods which do not tend to destroy
the very uniformity of effort called for by the doctrine of equality of educational
opportunity 39
The goals Strayer and Haig were attempting to operationalize included:


20
1. Ensuring equal educational facilities to every' child in the state.
2. Providing for uniform tax effort throughout the state.
3. Ensuring that the tax effort is related to the ability to pay.
4. In no way hindering the ability of local districts to raise funds above the
minimum level to provide a better education for their children.40
Paul Mort, one of Strayers students at Columbia, assisted in the development of
techniques for the implementation of Strayer and Haigs principles. However, as Johns has
suggested, he was more than a technologist. He was also a theorist and disseminator.41 Morts
proposed framework of a state guaranteed minimum program incorporated theoretical and
logistical underpinnings that marked:
1. An educational activity found in most or all communities throughout the state
is acceptable as an element of an equalization program.
2. Unusual expenditures for meeting the general requirements due to causes
over which a local community has little or no control may be recognized as
required by the equalization program, if they arise from causes reasonably
within the control of the community they cannot be considered as demanded
by the equalization program.
3. Some communities offer more years of schooling or a more costly type of
education than is common. If it can be established that unusual conditions
require any such additional offerings, they may be recognized as part of the
equalization program.42
The Strayer-Haig-Mort formulas, as they generally came to be known, materially
operationalized the earlier conceptualizations of educational financing schemes to reflect
common educational programs. In consideration of this development, Wood and Thompson
commented that it was the intention to ensure that each child within a given state would be
offered essentially the same educational opportunity, and in order to do so Mort advanced the
concept of the weighted pupil in which moneys distributed to school districts would be based on
the classification scheme of pupils.43
In the 1930s, Henry Morrison emerged as the next significant educational finance
theorist, advancing the proposal that the funding of public education be based on full state
support. While at the University of Chicago, Morrison questioned whether state funding in
conjunction with local support could actually provide equivalent schools while also ensuring
equal tax burden. Answering in the negative, Morrison observed:


Our extended analysis of the nature of the state school as a civil institution, of its
economic and financial foundations, of the requirements of a fiscal and political
structure founded on the school district in its various territorial forms, leads us
unerringly to the conclusion that the several states themselves are the appropriate
fiscal and administrative units in support and conduct of citizenship schools
which has long been held to be the cornerstone of our policy as a self-governing
state.44
Morrison argued that local school support disequalized educational opportunity and that the
equalization formulas proposed by Cubberley, Strayer, and Mort had failed to equalize
educational opportunity and never would do so.45 Constructing a controversial theory that
dismissed the local district as the focus of fiscal and administrative control, Morrison wrote:
The objection to taxation for purposes which are in principal and reality state or
national, merely because certain taxables have become concentrated in cities or
in a few states, is, of course, equivalent to an objection on the part of rich
families to be taxed on their ability to pay taxes, lest they should thereby be made
to carry the burdens of other people. The point is fundamental in the whole
theory of the individuals relation to civil society... When the purpose is
inherently a state purpose, as is the case with public schools, it matters not where
the taxables are concentrated, assuming no uneconomic use of the taxing power
is made. Even though 90 percent of the taxables are in a single city, the
obligation rests as heavily on that city as local obligations which are related to
municipal purposes pure and simple.46
Hawaii has been the only state to date which has adopted Morrisons funding proposal. Although
his ideas have generally failed to gain purchase among policy makers and school finance
specialists, the concept did reemerge, albeit briefly, in the 1970s, as states wrestled with court
challenges and funding disparities.47 This briefs subsequent trace of educational finance
litigation entertains the viability of Morrisons funding premise in light of court intervention.
Although the Twentieth Century had witnessed significant progress in the interpretation
of school finance data and the advancement of various conceptual models, they were rarely put
into practice. Of the era, Wood and Thompson have noted that state legislatures were often
reluctant to actualize changes and that even in early lawsuits, the litigation process had difficulty
in attempting to operationalize the newest research being disseminated every year within a system
that was based on a political process of distributing moneys to a public agency.48 It should be
recognized that courts when interpreting laws will tend to reflect the morals and ethics of the


22
time although they may deny doing so.44 The timbre of these times changed significantly with
the Brown v. Board of Education50 case of 1954. In reversing Plessysx the Supreme Court
accented the importance of equal educational opportunity. The Court opined, in a passage
ubiquitous in any educational tome, that:
Today, education is perhaps the most important function of state and local
governments. Compulsory school attendance laws and great expenditures for
education both demonstrate our recognition of the importance of education in our
democratic society...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.52
Of this decision, it has been written that it marked the modem era of finance theorists using the
courts as the vehicle to shape education finance change. Social equity would ease into the
consciousness of the American public from this point forward.53
Thomas Lowi has termed this period, particularly from 1940 through the 1960s as the
Second Republic due to growing emphasis upon the regulatory power of the government and
the redistributive programs of government; both sharp breaks from past governmental policies
and dispositions.54 Capitalizing on the logic of Brown, Arthur Wise proffered an argument for
school finance reform through federal court litigation. Wise asserted that the absence of equal
educational opportunity, evidenced by unequal expenditures constituted a state denial of equal
protection of the laws. In an argument premised on the consideration of education as a
constitutional right, Wise contended that the state had no reasonable basis on which to justify
making a childs education contingent on the districts wealth.55 Contemplating the origins of
identified inequities, Wise found that:
Educational inequality facilitated by a system of local financing exists because of
a combination of at least three factors: the self interest of the privileged, their
tendency to reside apart from the lower class, and the inability of the average
person to assess the quality of education available to his child, much less know
what is available elsewhere.56
Arguing that for equal protection purposes, education was a fundamental right, Wise charged that
absent a compelling reason educational resources could not be inequitably distributed. Drawing


23
on the one man-one vote principle of reapportionment cases he advanced a one scholar-one dollar
standard for education finance. He contended that:
In short, if the disparities in educational provision are to be diminished, the
courts will probably have to accomplish it. They may do so because, as this study
has suggested, the difficulty can be seen as constitutionalspecifically, an equal
protectionproblem. The concern here is the impact of the states school-finance
laws on the rights of individuals.57
On the heels of Wises study, John Coons, William Clune, and Stephen Sugarman
detailed the evolution of school finance systems and how they contributed to serious funding
discrepancies favoring children in wealthier districts.58 While documenting the failure of various
education funding schemes to provide for equity, Coons and his colleagues proposed a power
equalizing system, which as Ward had observed was not dissimilar in effect as Morrisons
aforementioned state centric financing program.59 Premising their argument on the proposition
that the quality of public education may not be a function of wealth other than the total wealth of
the state,60 Coons, et. al., helped set the stage for a new era in school finance that would soon
dawn in a California courtroom. The constitutional norm they pointed to did not insist on a
uniform state system; they acknowledged that some discrepancies might be warranted and saw
certain advantages in local control. According to Minorini and Sugarman, what the legal
researchers found unfair was that:
[Something as important as education was distributed on the basis of wealth and
poverty (albeit wealth and poverty of communities, rather than individuals),..The
Coons team hoped that a successful constitutional theory could be created out of
the Supreme Courts already expressed concern about wealth discrimination in
the provision of other fundamentally important matterslike the right to vote,
the right to obtain a divorce, or the right to mount a criminal appeal.61
Hal Horowitz, in developing the principle of geographic uniformity, turned to a different
area of the law. Horowitz argued that school spending within a state should not vary based upon
geography. He drew an analogy to state laws governing murder and other crimes that were
uniformly enforced. However, as opposed to Wises advocacy of uniform per-pupil spending
statewide, Horowitz proposed that a legislature might decide to allocate greater revenues for


24
disabled or at-risk students. If there happened to be more of such students residing in one district
than another, then more moneys per-pupil would be targeted. Under his proposal such a situation
would be acceptable given that discrepancies in allocation were based upon need not geography.62
Minorini and Sugarman have drawn attention to legal theorists of this period who found
the principles presenting in the evolving conceptualization of educational finance ill suited for
their purposes. These advocates maintained that the primary focus of funding programs should be
on unequal students needs, especially those of low-achieving students from the lower socio
economic strata. It was an imperative, not a legislative discretionary initiative, to provide greater
resources for this population. The needs based constitutional claim reflected a vertical equity
concept; essentially, poor children had a right to have their needs equally met.63 The central
difficulty within this conceptual framework, noted by Minorini and Sugarman was [h]ow much
spending does any child, or class of child need? If need implies a level of school spending
necessary to achieve some sort of educational outcome standard, then what outcome? And if
need is not about outcomes, what does it involve that a court could address?64 Although these
considerations would present most prominently in the reorientation from equity to adequacy
marked subsequently in this study, they have presented as ubiquitous issues in educational
finance litigation as courts struggle to delineate standards and in some instances dictate remedies
for constitutional infirmities.
While this brief provides an extensive account of educational finance litigation, the
judicial profile and a consideration of the implications thereof subsequently in the text, a
truncated overview at this juncture serves to illuminate the context and theoretical appreciations
of school finance. The federal response to nascent funding initiatives targeted at the courts is
distinguished by three cases. In Mclnnis v. Shapiro.65 a case heard in a United States District
Court and affirmed by the Supreme Court,66 plaintiffs in Illinois challenged a funding scheme as
unconstitutional as it permitted wide variations in spending per-pupi! and failed to base
allocations on educational need. In dismissing the Fourteenth Amendment suit, the district court,


25
while acknowledging wide variations in revenues, found that they were not invidious or arbitrary.
Additionally, the opinion marked the state provision of a per-pupil minimum while ruling that
under the Fourteenth Amendment no requirement as to equal expenditures presented. The court
asserted that the funding of public schools and the particulars of same was properly the province
of the legislative bodies. A contemporary federal case in Virginia came to essentially the same
conclusion. Addressing a Fourteenth Amendment claim, the district court in Burruss v.
Wilkerson,61 rendered that:
The existence of such deficiencies and differences is forcefully put by plaintiffs
counsel...we do not believe that they 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...we can only see to it that
outlays to one group are not invidiously greater or less than that of another...no
such arbitrariness is manifest here.68
The questions raised in these early cases reflect the difficulty these judicial bodies had in
the absence of empirical data that could speak directly to distinct educational deficiencies.
LaMorte has noted that a state case in California, Serrano v. Priest,69 overcame that hurdle
writing that:
[It] provided the court with judicially manageable standards which had been
missing in Mclnnis and Burruss. In this case, the plaintiffs attempted to
demonstrate that the California method of financing public education allowed
substantial disparities among the various schools districts in the amount of
revenue available for education, thereby denying students equal protection of the
laws under the United States and California constitutions.70
In the trial court,71 plaintiffs argued that the California public education funding methodology
violated the Equal Protection Clause of the 14th Amendment because the amount of money spent
per-pupil varies from one district to another according to the wealth of a pupils parents and
districts in which he resides, not according to his educational needs.72 However, the court in
finding for the state asserted that the equal protection rubric did not "'require that the school be
uniform as to the quality of education or money spent per pupil.73 On appeal, the case reached
the California Supreme Court in 1971.74 The state's high court found a judicially quantifiable
standard in fiscal neutrality. In reversing the trial courts ruling, the supreme court determined


26
that the methodology the state employed to fund education could not be a function of property
wealth, a holding structured on the theoretical underpinnings proffered by Coons, et. al.; the
principle of wealth neutrality defined as:
[T]he concept by which each school districts funding is dependent only upon the
districts efforts which would be totally independent of its wealth or ability to
pay...this concept as having each school district able, via the distribution
formula, to obtain the same revenues per weighted pupil provided that each
school district make the same effort.73
According to the court, the reliance upon local property wealth discriminated against the poor and
thus stood in violation of both the federal and state constitutional equal protection demands. As
Russo has marked, the opinion not only condemned a system based on local property wealth but
also charged that the state initiatives to introduce a modicum of equity actually acerbated the
discrepancies.76 In addition, citing both federal and state constitutions, the California court held
that education was a fundamental interest to both individuals and society, marking its universal
relevance, the fact that it was compulsory, the integral role it play ed in free enterprise democracy,
and length of the time span over which it was provided as per state mandate.77 In a novel legal
interpretation, the court found that wealth presented as a suspect class, rejecting the states claim
that suspectedness only concerned individual wealth, stating that:
[T]o allot more educational dollars to the children of one district than to another
merely because of the fortuitous presence of property is to make the quality of a
childs education dependent upon the location of commercial and industrial
establishmentssurely this is to rely on the most irrelevant of factors as the basis
for educational factors.78
Wood has detailed the ramifications of this landmark case, writing that:
First, Serrano proved that the meaning of equal educational opportunity could be
so sweeping as to include education finance. Second, Serrano proved that states
could be vulnerable to constitutional attack, even though the federal courts had
been unassailable. Third, under state provisions Serrano successfully established
all three claims of fundamentality, wealth suspectedness, and equal protection.
Fourth, Serrano had an immediate and profound effect, sparking dramatic reform
of state aid distribution formulas in many states. Finally, Serrano compelled the
flurry of reform both through legal standards and by the courts view on how
inequity might be redressed.79


27
The legal framework constructed by the California Supreme Court in Serrano I was soon
evidenced in a federal district court in Texas, setting the stage for the third federal case within
which the final federal issues in reference to education finance were determined. In Rodriquez v.
San Antonio Independent School District,*0 the court utilized the analysis employed in Serrano I,
in striking down the educational funding scheme in the state of Texas, determining that it was
constitutionally infirm in reference to the Fourteenth Amendment. While directing state officials
to change the taxing and financing system to comply with equal protection demands, the district
court stayed its order for two years to give the legislature the time to change the funding scheme
so that educational opportunities were not a function of wealth other than the wealth of the State
as a whole.81
On appeal, the Supreme Court reversed the lower court in favor of the state in Texas in
the landmark case, San Antonio Independent School District v. Rodriquez.82 In a five to four
decision that upheld the Texas education financing scheme, the Court rejected the plaintiffs
claims that the system was discriminatory because per-pupil expenditures demonstrated an
inverse relationship to the wealth of a students district. Although noting that the distribution
system was flawed, the Court opined that it was permissible as it encouraged local control, a
structural and administrative dynamic that the opinion considered a valid public policy.
Addressing the proposed presence of a suspect class, the ruling noted that wealth discrimination
in prior cases had been confined by the judiciary to personal wealth and as such, the class in the
instant action did not merit special protection.83 The Supreme Court also declined to accept the
argument that education was a fundamental right. The plaintiffs had premised their claim of
fundamental ity on the relationship of education to other extant fundamental rights in an effort to
establish a clear nexus...in concept public education was inextricably tied to other existing
fundamental rights wherein the intelligent exercise of the right to vote and the right to free speech
were said to depend on education.84 The Court responded that:


28
The key to discovering whether education is fundamental is not to be found in
comparisons of relative societal significance of education as opposed to
subsistence or housing...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 or implicitly by the
Constitution...the undisputed importance of education will not along cause this
Court to depart from the usual standard for reviewing a States social and
economic legislation.85
Justice Powell spoke to a slippery slope in the majority opinion noting that if some
level of education were considered to be essential for the exercise of political rights under the
Federal Constitution similar arguments could be made that the ill-fed, ill-clothed, and ill-housed
are among the most ineffective participants in the political process.86 Absent the presence of a
suspect class and/or a fundamental right the Court applied a rational relationship test in its
treatment of an equal protection charge; an exercise that compelled the Court to hold that the
states desire to maintain a degree of local control and educational autonomy met the standard.
The decision marked that the Equal Protection Clause did not require absolute equality or
precisely equal advantages.8' Rebell has observed that the ruling in Mclnnis,88 which
emphasized the lack of discoverable and manageable standards, formed an important backdrop
for the decision in Rodriquez.89 The Court referenced the analytical quandary, stating that:
Even if it were conceded that some identifiable quantum of education
is...constitutionally protected...we have no indication that the present levels of
educational expenditure in Texas provide an education that falls short...[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.90
The Court demonstrated a reluctance to intrude upon an area traditionally consigned to
the states, particularly in a judgment factoring a conceptual appreciation of local control. Justice
Powell, who penned the opinion, stated that:
The consideration and initiation of fundamental reforms with respect to state
taxation and education are matters reserved for the legislative processes of the
various states, and we do no violence to the values of federalism and separation
of power by our hand. We hardly need add that this Courts action today is not to
be viewed as placing its judicial imprimatur on the status quo...certainly
innovative new thinking as to public education, its methods and its funding, is
necessary to assure both a higher level of quality and greater uniformity of


29
opportunity. These matters merit the continued attention of the scholars who
already have contributed much by their challenges. But the ultimate solutions
must come from the lawmakers and the democratic pressures of those who elect
them.9
The Court also expressed concern with the larger implications of the decision, speculating that if
the lower courts ruling were upheld it could lead to an unparalled upheaval in public
education,92 and that there was no way of predicting the consequences of massive change in the
financing and control of public education.93 Heise expanded upon this reasoning, observing that:
The Rodriquez Court was concerned about the potential impact of the result
urged by the plaintiffs in the nations school systems. Twenty years earlier in
Brown the Court ruled school segregation unconstitutional. In the decades that
followed Brown the Supreme Court as well as many other federal courts
struggled with the implementation and remedial aspects resulting from Brown.
No doubt mindful of the judicial effect on the school desegregation issues, the
Court in Rodriquez noted the implications of a decision that would effectively
abrogate school finance systems operating in virtually every state, thereby
affecting most of the nations public schools as well as the relationship between
federal and state power.94
The Rodriquez decision effectively closed the door to school finance challenges grounded
on a federal equal protection claim. Yet, subsequent federal rulings have generated a
consideration of a possible federal role in the future. Thompson has posited that although
Rodriquez has been commonly believed to represent an unassailable posture among federal
courts, these cases suggest that a different perspective may be possible.95 In a case from Texas96
addressing the rights of children of illegal immigrants to access public education, the Court cast
education as a quasi-fundamental right that was due an intermediate standard of scrutiny ; an
analysis that generates from within the rigid dichotomy between the rational relationship test and
the application of a strict scrutiny standard.97 Of this measure, Nowak has suggested that:
The standard of review of these cases eliminates the strong presumption of
constitutionality that exists under the rational basis standard of review but it
allows the government to employ a...classification so long as it is a reasonable
means of achieving substantial government ends and not merely the arbitrary
classifying of people... ,98
The Plyler Court wove a broader appreciation of education from the federal perspective, writing
that:


30
Education provides the basic tools by which individuals might lead economically
productive lives to the benefit of us all. In sum, education has a fundamental role
in maintaining the fabric of our society. We cannot ignore the significant social
costs borne by our Nation when select groups are denied the means to absorb the
values and skills on which our social order rests...[and that] Public education is
not a right granted to individuals by the Constitution. But neither is it merely
some governmental benefit indistinguishable from some other forms of social
welfare."
Reflecting on Plyler, and the implications of the ruling, Thompson has commented that:
While fundamentality and differential treatment related to funding disparities
have either failed or been incompletely addressed, Plyler further called into
question the previous assumption of a deaf federal ear...in terms of
fundamentally, equal opportunity and equal protection, Plyler suggests that
issues before the Court may simply be as yet undefined rather than intractably
drawn.100
In Papasan v. Allainm the Court addressed a legal challenge to the distribution of
revenues in Mississippi generated from Section 16 land income.102 Plaintiffs cited the disparities
presenting in the system, construing them as violative of the Equal Protection Clause. Reversing
the Fifth Circuit, the Court remanded the case finding that the discriminatory nature of the
allocations, absent a legitimate state interest was sufficient to state a cause of action. The opinion
remarked that [t]his case is very different from Rodriquez where the differential financing
available to school districts was traceable to school district funds available from local real estate
taxation, not to a state decision to divide state resources unequally among school districts.103 In a
concurring opinion, Justice White commented that as Rodriquez and Plyler indicate, this Court
has not definitively decided whether a minimally adequate education is a fundamental right and
whether a statute alleged to discriminatorily infringe that right should be accorded heightened
equal protection review.104 Wood has noted that Papasan is...important for what it stated and
what it failed to state...a glimmer of federal interest in education finance was seen on remand, as
the court noted that unreasonable government action would be scrutinized.103 Thompson writes
of the case, that although it did not provide a full text of the federal question, it clearly indicated
some limited federal protection for education as the court ruled that equal protection at least
extends to unreasonable governmental action.106


31
A subsequent federal case, Kadramas v. Dickinson Public Schools,'07 considered the
argument that a district policy that charged students for bus service was a denial of equal
protection because the plaintiff student was wealth -disadvantaged. In a ruling reflecting
indeterminateness regarding fundamentaiity, the Court held for the defendants denying the
fundamentality argument, yet pointing out that there were variances and exceptions that preclude
absolutism in interpreting Rodriquez. The dissenting opinion emphasized that:
The Court...does not address the question of whether a state constitutionally
could deny a child access to a minimally adequate education. In prior cases this
court explicitly has left open the question whether such a deprivation of access
would violate a fundamental constitutional right. That question remains open
today.108
Considering the federal challenges, Thompson observed that:
[T]he Court has stated that if funding disparities can be related to a minimum
level of education required for the exercise of other constitutionally established
rights, it may be possible to successfully argue a case for fundamental ity... any
plea for a fundamental right to an education in the absence of a final
determination that education is of itself a fundamental right must be constructed
by drawing an indivisible link between education and other rights based in
individual and collective liberties...fof a future federal role] first, education as a
fundamental right remains a viable although ill-defined concept. While most
heightened scrutiny claims, including wealth suspectedness, have been rejected,
Rodriquez has left open the door to other issues, especially educational
deprivation. Secondly, Plyler has established that total educational deprivation
calls for some measure of heightened scrutiny based on denial of access to other
rights. Third, the concept of nexus to fundamental rights points to a need to
strictly define deprivation on less than an absolute scale.109
In a review nearly fourteen years subsequent to Thompsons critique, Wood noted seven points
from the federal judiciary' history. He wrote that:
First, it can be gathered that the Supreme Court is sympathetic to the problems of
judicially manageable standards. Second, the Supreme Court is quick to uphold
legislative prerogative. Third, the Supreme Court is reluctant to declare education
a fundamental right, and any reversal is not likely to occur lightly. Fourth, the
Supreme Court is not yet willing to create new suspect classifications. Fifth, in
the case of education, the Supreme Court has narrowly interpreted equal
protection to mean racial equality or, alternatively, to mean absolute deprivation
which has fiscal overtones. Sixth, Rodriquez has been the controlling precedent
in subsequent litigation, and the Supreme Court itself has utilized Rodriquez to
reject further assaults on a federal educational right. But seventh, all assaults
following Rodriquez have been narrowly drawn, and it is clear the Supreme
Court holds an undefined interest in education that may eventually emerge.110


32
Beyond these federal considerations, within the scope of education finance litigation
commentators have pointed to three distinct waves of court decisions.111 The first wave
addressed the issue through the Federal Constitution; an approach illustrated in the
aforementioned Serrano, Rodriquez, Mclnnis, Burruss, Papasan, and Kadramas cases. The
second wave, ushered in with the Robinson v. Cahill'12 case from New Jersey, witnessed the shift
to a two prong legal strategy; targeting both state and federal equal protection clauses and state
constitutional education clauses. The third wave has generally been demarcated from 1989
onward with the Rose v. Council For Better Education, Inc.113 case from Kentucky. It has been
characterized by a narrower focus on the educational clauses of state constitutions and an
evolving legal tack toward the question of adequacy as opposed to equity concerns.
The first wave of cases was premised on the understanding that the financing schemes in
question were violative of the Equal Protection Clause of the Fourteenth Amendment. Heise has
noted two judicial dynamics which made this approach plausible, writing that:
First, the U.S. Supreme Courts interpretation of the Fourteenth Amendment
changed significantly during the 1950s and 1960s. In the process, the Court
developed the Equal Protection Clause into a tool that could significantly
influence public policy. Second, the Court recognized educations importance not
only to the individual but to society.114
As Enrich has pointed out, although the Court in Brown did not specify education as a
fundamental right, its description of the importance of education became a veritable rallying
cry.115
Legal strategies targeted at equal protection claims were grounded in a gradual
redefinition of the clause in a series of cases that although not specifically addressing education,
would present as a foundation for a court challenge.110 Calling it a virtual revolution in the
Courts treatment of the Equal Protection Clause, Enrich commented that in the 1950s and 1960s
in a range of disparate fields, the Court during this period found the Equal Protection Clause a
powerful weapon for attacking important and well-entrenched elements of the established
political order...the Court crafted a tool v/hose promise as an instrument of social change


33
appeared vast....117 The Brown decision and subsequent school desegregation cases broadened
both the scope and promise of equal protection. Further, equal protection claims came before the
Court that addressed distinctions based on wealth; particularly those cases that challenged states
to ensure that criminal defendants could not be prevented due to financial circumstances from
availing themselves of protections provided by the criminal justice system, in Griffin v. Illinois,118
the Supreme Court ruled that the right of appeal could not be impeded by an inability to afford the
cost of a trial transcript; such an action evidenced wealth discrimination. Also referencing wealth
discrimination, in a ruling encompassing fundamental rights and statutes presenting as
constitutionally infirm, the Court invalided the poll tax in Harper v. Virginia Board of
Education.] 19 Considering the expansion of the scope of equal protection, Enrich noted that:
The school integration cases were concerned with discrimination that was the
product of deliberate governmental distinctions based on race. The wealth
discrimination cases made clear that the Equal Protection Clause also limited
governmental policies and requirements that, while facially not drawing
distinctions among classes, had the effect of denying opportunities to one class
that were available to others...this line of cases reinforced the Equal Protection
Clauses appeal to critics of property wealth based systems of education
funding.120
A conspicuous characteristic of the wealth discrimination rulings was that the financial
circumstances were individualized, while in education finance litigation, variations in resources
reflected the larger community where the student resided. This body of cases also concerned an
absolute deprivation, while in the education cases, the ramifications of state initiatives arguably
resulted in a relative deprivation, gauged according to a diminution in the quality or quantity of
education.121
In addition to desegregation cases and actions challenging wealth discrimination,
legislative reapportionment actions contributed to the redefinition of equal protection. In Baker v.
Carr,'22 the Court struck down a Tennessee reapportionment scheme that resulted in the
debasement of the plaintiffs votes and found that this denial of equal protection, resulting from
accidents of geography and arbitrary boundaries constituted a justifiable cause of action. With


34
similar legal reasoning, the Court in Reynolds v. Sims,'13 held that the Equal Protection Clause
demanded substantially equal legislative representation for all citizens in a state, regardless of
where they resided. A case analogous in that it concerned geographic discrimination, Shapiro v.
Thompson,124 witnessed a Court ruling in favor of indigents who had exercised their right to
travel from one state to another, but then were denied welfare in their new state of residence.
Minorini and Sugarman have noted that for school finance reform advocates if restricting the
access of the poor to welfare based upon where they lived was illegal, then perhaps provision of
inferior education to the poor based upon where they lived would also be illegal.1 5 For Enrich,
these cases suggested that neither absolute deprivation nor individual impact were prerequisites
to rigorous equal protection review, and for school finance reform strategists the one-man one-
vote doctrine articulated in Baker disclosed in the Equal Protection Clause a right to all citizens
to mathematically equivalent treatment, regardless of the district which they resided.126 Enrich
also suggests that there was another factor that compelled early education finance equity
advocates to seek remedy in the Federal Constitution. He cites civil rights activists and the anti
poverty community as critical, supportive constituencies, writing that:
For both of these communities, during the relevant period, the establishment of a
constitutional foundation for the rights of the poor to government services and
protections was an important objective...the most plausible source for such a
constitutional right, at least under the federal Constitution, was the recognition of
wealth as a suspect class within equal protection analysis. Disparities in
educational opportunities offered a fertile ground on which to cultivate such a
recognition.127
Wood has observed that [tjhese strands were actually an expression and extension of judicial
sympathy to a fairly liberal construction of the meaning of equality that had already resulted in
the establishment of certain fundamental rights under the law.128 According to Phillip Kurland,
these rulings, and the legal concepts therein, were soon cast into an education context as litigants
sought to establish suspect class and fundamentality for equal protection analysis.129
Despite the promise of these philosophical and judicial antecedents, the Rodriquez
decision effectively prevented any successful federal challenge. Wood has marked that:


35
If neither a fundamental right or a suspect class was established, failure was
assured because the doctrine of limited federal powers given the Tenth
Amendments silence regarding education would release the coveted claims of
federal protection; failure of a federal case meant that equality of educational
opportunity would either be lost or turned to the states without the power of the
Federal Constitution. Thus, from a historical perspective, the thinking of the early
education finance scholars was clear, if not flawed in the reality of the
overwhelming complexity of the question.130
Yet, it cannot be ignored, as Enrich pointed out how close this strategy came to success, nor how
very different both the legal and educational worlds, and indeed the entire world of state-local
relationships and of municipal services delivery, would now look if one justice had voted the
other way in Rodriquez ,131
While cognizant of the aforementioned, albeit slight, possibility of a future federal stage,
plaintiffs turned to state courts and have overwhelmingly confined their actions to this realm.
Robinson12 in New Jersey was one of the initial cases employing this course and demonstrated
the potential success of focusing on a state constitutions education clause or article. Ushering in
the second wave of educational finance litigation, the ruling was grounded solely on the language
of the New Jersey State Constitution. Although the oral arguments in Robinson occurred before
the Rodriquez decision was announced, the New Jersey Supreme Court acknowledged that, with
Rodriquez, the Federal Constitution did not apply to challenges to state school finance systems.
While making note of funding disparities, the court failed to conclude that the demonstrated
variances stood in violation of the states equal protection demands. Further, the opinion declined
to cast wealth as a suspect class, opining that if this is held to constitute classification according
to wealth and therefore suspect, our political structure will be fundamentally changed.133 Nor
did the court find that education was a fundamental right. The state high court pointed out that the
Supreme Court had never reached such a determination, even in the Brown case; in fact the court
maintained that Brown pointed in the opposite direction, having declared education an important
state and local function.134 Despite these qualifications, the court did rule that the states funding
scheme failed to meet the states constitutional burden. The educational clause135 required the


36
provision of a thorough and efficient system of public education and the requirement was not
met given that the system evidenced the lack of financial equalization. Referencing the funding
disparities, the court marked that it could not rule otherwise unless we were to suppose the
unlikely proposition that the lowest level of dollar performance happens to coincide with the
constitutional mandate and that all efforts beyond the lowest level are attributable to local
decisions to do more than that State was obligated to do.n6 Considering the case which
reoriented the focus of education finance litigation, Heise noted that:
Despite a major defeat in the Supreme Court...the New Jersey Court in Robinson
demonstrated the amenability of state constitutions and that an equity approach
could succeed in state court. Education clauses, alone or in conjunction with
claims rooted in state equal protection clauses, provided a valuable tool to
invalidate school finance systems and reduce per-pupil disparities.137
Wood and Thompson have suggested that state constitutional language may enable
plaintiffs to secure success far beyond the potential ever envisioned by plaintiffs through a federal
judiciary system.138 In consideration of this dynamic, Utter has observed that the Federal
Constitution is one of limited powers. The federal government can only do those things explicitly
or implicitly specified in the document. By contrast, state constitutions are essentially limitations
on otherwise unlimited power; they may do anything that is not prohibited by the federal or state
constitution. In addition, he marks that they are much more political in that they may be easily
amended and that they often protect individual rights such as the right to education, that are not
guaranteed by the Federal Constitution.139 The Supreme Court has determined that a state court is
free to use its own approach of analysis and to find that state provisions provide greater protection
to individual liberty. The Court opined in Oregon v. Hass,uo that a state is free as matter of its
own law to impose greater restrictions...that those this Court holds to be necessary. ..141 And in
a manner not available at the federal level, the people of a state have the opportunity to make
timely choices about fundamental matters of constitutional law.
Most state constitutions do not contain an equal protection clause that is as explicit as the
Federal Constitution. Instead they contain provisions for guaranteeing equality that have the same


37
effect as the federal clause.142 Thro has categorized state courts analysis of these equality
guaranty provisions, writing that:
First, some state courts follow federal equal protection doctrine without
deviation. Second, other state courts use the federal levels of scrutiny framework,
but have developed their own independent analysis as to what constitutes a
fundamental right or suspect classification. Third, a few state courts reject all
aspects of the federal approach and develop their own independent, framework
and analysis.143
Providing another avenue for education finance reform advocates, all state constitutions
contain provisions compelling the state to create and maintain public school systems. Addressing
their legal utility, Heise has observed that:
Reformers find education clauses particularly attractive because they make it
easier for some courts to reach the results reformers seek. State education clauses
directly addresses states educational duties...[while] school finance decisions
rooted in state education clauses pose fewer implications for other areas of the
law than similar decisions involving state equal protection claims.144
State educational clauses can in combination with the states equal protection demands buttress a
challenge to a funding scheme on an equal protection claim in that it can validate the
characterization of education as a fundamental right. Or as evidenced in Robinson, the
educational provision can stand alone as a constitutional standard by which to scrutinize an
educational funding system; independently employing the education clause to demonstrate a
requirement for some degree of equity. The nature and timbre of a states education clause can
dictate the legal tack employed by reform advocates, and as Wood pointed out chances for
success depend upon the courts' analysis of the state constitutional framers intent, the inclinations
of each state court, persuasive litigation from other states, and the strength of language of the
state education article itself.145
Assessing state constitutions education clauses, Grubb proffered a categorization scheme
that marked four classes:
1. Weak clauses that simply call for the establishment and maintenance of
public schools;
2. Clauses that emphasize a quality component, i.e., thorough and efficient;


38
3. Clauses which call for advancing education by all suitable means and
contain purposive preambles;
4. Clauses which term education paramount and impose soecific duties on the
state.146
Thro has also provided a framework with which to consider education clauses:
1. Category Iimpose a legislative duty which is met by simply establishing a
public school system;
2. Category IIrequire that the system be of a specific quality or have some
characteristic such as uniformity;
3. Category IIIgo beyond the specific quality level of Category II and set up
the school system for a specific purpose;
4. Category IVeducation is considered to be a primary, fundamental, or
paramount duty of the state legislature.147
McUsic has broadened the appraisal of education clauses to address those that she
proposes speak to claims of equity as opposed to those which specify minimum standards. Noting
education articles that require equity, the author points to that of Montanas constitution which
compels the provision of a system of education which will develop the full educational potential
of each person. Equality of educational opportunity is guaranteed to each person of the state.148
Also included in the equity category are those clauses which speak to uniformity, thorough
and efficient, or efficiency, in addition those which do not specify an equity standard. Of the
later, McUsic cites Alaskas education demand which states in part that [t]he legislature shall by
general law establish and maintain a system of public schools open to all children of the
State....149
The second group in McUsics classification scheme address minimum standards.
McUsic marks those education clauses which specify an explicit and significant standard, such as
Illinois which proclaims [a] fundamental goal of the People of the State is the educational
development of all persons to the limits of their capabilities. The State shall provide for an
efficient system of high quality educational institutions and services.10 Others set less explicit
standards, while still providing for a considerable modicum of quality, such as the Kansas clause
which compels the legislature to provide for intellectual education, vocational and scientific
improvement.151 Of those educational clauses which are less rigorous, McUsic writes [t]he


39
provisions in this grouping can be further divided into two categories; those that provide a
detailed and expansive standard of education, but limit the states obligation to 'encouraging,
promoting, or cherishing that standard; arid those that provide merely for an adequate or
sufficient education.152
The inherent latitude, both in state educational clause language and subjective
interpretations have presented both opportunity and impediment to reform advocates. Second
wave decisions overall have presented a decidedly mixed record, owing in no small measure to
the fact that state courts could interpret identical or nearly identical constitutional language and
reach radically different results.153 In light of the nature of these articles, Julie Underwood asserts
that any attempt at categorization is not particularly useful given that they are reliant on the
states constitutional history and the judiciarys own method of interpretation.154 Considering
this era of education finance litigation, Wood has identified the emergence of significant
features in light of the overall dynamics, commenting that:
First, the supreme courts in a number of states have declared that education is a
fundamental right based on the state constitution. Second, based on the state
constitution, there are many states in which the highest court has declared
education is not a fundamental right. Third, due to strict scrutiny sometimes
being applicable, there has been no perfect pattern in which establishing
fundamentality has automatically invalidated a state finance distribution formula
by virtue of invoking coveted strict scrutiny...Fourth, the harshness of this reality
has been somewhat softened by the logic of Robinson, as several state supreme
courts have ruled for plaintiffs by finding equality a requirement, even absent the
one feature of fundamentality that would invoke strict scrutiny analysis.155
Within the educational finance litigation context, recent actions have been premised on
the argument that the aid distribution system is fiscally inadequate.156 Of this evolution, Thro has
opined that [ajlthough each wave had profound implications for American education, the most
significant wave, in terms of cases, number of plaintiffs victories and amount of substantial
change is the current.. .wave of cases.157 Odden and Picus noted that the strategy in this third
wave of cases shifted to an explicit focus on the substantive demands of education clauses, and it
is this strategy that led to the actual term adequacy and its definitions in school finance litigation


40
in the 1990s and early twenty-first century [sicj.! j8 fhe first two waves in school finance
litigation generally sought an equitable situation whereby the disparities in per-pupil spending
would be reduced. In contrast, Thro remarked that in replacing the traditional equity concerns, the
adequacy decisions target the sufficiency of school spending and are premised on the belief that
all children are entitled to an education of at least a certain quality and that more money is
necessary to bring the worst school districts up to the minimum level mandated by state education
clauses.159 Adequacy decisions highlight the differences in educational quality rather than a
quantitative measurement of resources provided. Referencing this trend, Heise wrote that:
As a result, adequacy decisions challenge school finance systems not because
some districts spend more money than others, but because the quality of
education in some districts (not necessarily the financially poorest ones) fails to
meet a constitutionally required minimum. The emergence of adequacy court
decisions, thus, signals an important change in school finance litigation and
illustrates a decidedly different approach by those using the courts to refonn
school finance.160
Minorini and Sugarman have pointed to Robinson and Seattle School District v. State,161
from Washington in 1978 as antecedents to the 1990s adequacy cases, although the term
adequacy was never mentioned in these cases.162 Other scholars have suggested that Helena
Elementary School District No. 1 v. State,163 from of Montana and/or Pauley v. Kelly,164 from
West Virginia may merit citation as the earliest instances of action structured upon an adequacy
argument.165 A case clearly within the realm of adequacy decisions and the first to definitively
demonstrate the promise of the adequacy theory is Rose v. Council for Better Education.166
In 1989 the Kentucky Supreme Court rendered its decision in Rose, not only finding the
states public education financing scheme infirm, but also holding that the entire educational
system was violative of the states constitution. Addressing the school systems governance,
curriculum, and administration, the court stated:
Les there be any doubt, the result of our decision is that Kentuckys entire system
of common schools is unconstitutional. There is not allegation that only part of
the common schools is invalid, and we find no such circumstance. This decision
applies to the entire sweep of the system-all its parts and parcels.167


41
In a case that was initiated on a fiscal neutrality argument, the court decision broadened the scope
of the challenge to embrace the issue of adequacy.168 The state high court conduced that the
states most affluent districts were inadequately funded when referenced against acceptable
national standards.109 The decision pointed to academic indices demonstrating that in terms of
student achievement, Kentucky placed well below neighboring states, i.e., nearly twenty-one
percent of ninth graders failed to graduate from high school. Admonishing the state, the majority
declared Kentuckys schools are underfunded and inadequate...[and] are ranked nationally in
the lower 20-25% of every category that is used to evaluate educational performance.170 Beyond
lamenting the provision of public education, the court moved to detail seven essential
competencies that a constitutionally mandated uniform and adequate system would develop in
students.171
Alexander has detailed the precedential implications of Rose, observing that the decision
expanded the discussion of what constituted an adequate education. Considering the judicial,
political and ideological scope of the adequacy decision, Alexander commented that:
First, the court set the boundaries in the separation of power between legislative
prerogative and judicial responsibility...[asserting] a limited but certain judicial
role in delineating the affirmative constitutional obligations...Second, the court
acknowledged and established the fundamentality of education...[and framed]
the fundamentality of education as a simple and obvious fact...Third, the court
gave form and substance to the education provision of the Kentucky Constitution
and firmly established its importance as a standard to which the legislature must
adhere. Fourth, the court showed a willingness to interpret substantively to the
detail of the education clause of the Kentucky Constitution by holding that an
efficient system of public schools required equality of opportunity. Finally, the
court justified the appropriateness and efficacy of striking down the entire system
of education, rather than merely invalidating selected offending school funding
statutes.172
Rebel! has observed that the decision articulated the types of basic skills that student would need
to develop in order to participate effectively as citizens in a democratic society and to be prepared
to compete in the contemporary economy.173 Yet, as striking as the Rose decision was the case
and its resolution in and of itself does not account for the apparent shift from a traditional equity


42
iegal strategy to one premised upon adequacy. Exhibiting no lack of contributors, the literature
addresses that dy namic from a number of perspectives.
Enrich suggested that equality arguments in the context of educational finance suffered
from two fundamental weaknesses. First, equity is not as simple and clear cut as may have been
presumed. He notes that the very idea of equality evokes the imagery of simple quantitative
comparisons... [yet] in the context of education funding, the imagery has proven
deceptive...because the appropriate dimension for comparison has proven elusive.174 Enrich
maintains that measures of fiscal capacity have failed to demonstrate a close connection to
demonstrable educational consequences that discriminate between children. However, measures
that move away from calculations such as property value per-pupil to qualitative considerations
of other educational inputs or outcomes can prove just as problematic. Yet, he speculates that the
supposed simplicity and certainty of the concept of inequality threatens to be overwhelmed by
substantive controversies with which both courts and legislatures are justifiably
uncomfortable.173 While citing that appeals to the facilitation of equal treatment by the
government has an innate appeal, Enrich notes that in application it can face significant
opposition. He points to affluent districts, for which equalization programs appear to threaten to
restrict the resources and services they can offer; this in addition to the suspicion that in the
design to improve poorer districts, they will disproportionately bear the financial burden. In
essence, Enrich found that equality of education...turns out to be in direct conflict with a cluster
of other potent interests, such as preserving control over (and in preserving the value of) ones
pocketbook and securing the welfare of ones own children.176 Other concerns such a local
control, individual autonomy, and property rights prove to be power competitors for equalitys
appeal.1'7
Michael Rebell has observed that [a]dequacy...tends to involve less political resistance
at the remedial stage because rather than raising fears of leveling down education opportunities


43
available to affluent students, it gives promise to leveling up academic expectations for all other
students.178 James Ward, addressing the shortcoming of equity has offered that:
There is a massive resistance to altering fundamental arrangements in society if
there are winners and losers. The movement toward equal educational
opportunity will benefit many children and will probably benefit society as a
whole, but there will be those who do not benefit and, in fact, will perceive their
own individual situations to have worsened. These individuals may be those who
may pay higher taxes or those who may feel that their own children no longer
have the competitive advantage over other children that they may once have
had.179
Weighing this dynamic, he suggests that in one interpretation, the attainment of adequacy says
that the elites may still have their privilege and that we must make sure that the lower classes
have an education that surpasses some threshold...[fjrom the conflict about equity emerges the
consensus as adequacy as a goal.180 Contemplating the strategic shift, Reschovaky has written
that implementing an adequacy standard is far less likely than programs instituting equality
formulas to generate political confrontation. In addition, he maintains that that without substantial
sources of additional revenues many states may be unable to elevate all per-pupil spending to that
of the more affluent districts and that removing local control of educational investments may
seriously decrease support for education.181 The arguments speak to Cass Sunsteins endowment
effects; a dynamic wherein people place a higher value on rights and goods that they currently
hold than they place on the same goods in the hands of others.182 Equity remedies that are
perceived to redistribute revenues lend themselves to the endowment effect of loss aversion; the
concept that a negative change from the status quo is seen as more harmful than a positive change
is seen as beneficial.183
Paul Enrich also pointed to a discouragement with the results of an equity based strategy.
Contemplating the historical record, he observed that the mere equalization of tax capacity, or
even the significant progress some states have achieved toward equalization of school budgets,
has proven insufficient to put the educational opportunities of disadvantaged children on a par
with those of their better off peers.184 Enrich contended that arguments for adequacy may avoid


44
many of the shortcomings of equity as it is sifted through the judicial process. He marks that
adequacy cases are based on upon the explicit text of the states educational clause in contrast to
equality arguments. Of these equity claims, Enrich writes that:
[They] must pass through an intermediate interpretive step. Either they must find
in the education clause the intention to elevate education to a special status that
subjects it to heightened standards of equal protection or they must find evidence
in the constitutional language of a requirement, not only to provide schools, but
provide them equally.185
Notation is also made of educational clauses appeal to a specific sphere of governmental
responsibility, thus adequacy challenges confined to these articles do not threaten to spill-over
into other areas of governance. A federal court spoke to this fear in Parker v. Mandelm within a
consideration of the fundamentality of education and wealth as suspect class. In this early
educational finance action, the opinion stated:
To hold that the strict scrutiny test applies to legislation of this sort would be to
render automatically suspect every statutory classification made by state
legislatures in dealing with matters v/hich today occupy a substantial portion of
their time and attention. If the test which plaintiffs seek to apply is the
appropriate standard here, then a state, on each occasion that a similar Fourteenth
Amendment attack were made against a statute dealing with health, education, or
welfare, would be required to bear the burden proving the existence of a
compelling state interest. This Court cannot conclude that state legislatures are to
be straightjacketed by such recently evolved constitutional theory in areas that
have traditionally been the exclusive concerns of the state.187
Enrich summarily pointed to the difficulties in clarifying exactly what equality demands, its
threats to other interests and the state constitutional complexities that obscure a textual foundation
for these arguments to conclude that all account for the many cases where courts have upheld
financing schemes that were starkly inequitable.188
Addressing this reorientation, Thro has written fijnstead of emphasizing equality of
expenditures, the plaintiffs have argued that all children are entitled to an education of at least a
certain quality and that more money is necessary to bring the worse school districts up to the
minimum level mandated by the state education clause.189 He distinguished these quality suits
that depend exclusively on the education clauses of individual state constitutions from the equity


45
suits that relied upon the states equal protection clause. In the equity suits such questions as
whether education is a fundamental right or whether the school finance system is irrational will
dominate the analysis, while in quality suits the court must begin its analysis by determining if
the state education clause imposes a specific standard of quality....190 Thro observes that if a
court finds the failure to meet a constitutional standard is systemwide, it must look beyond the
funding scheme, for even if the lack of money is [sic] a cause, or even the primary cause, of the
districts inadequacy, it is almost inevitable that there will be other non-fmancial concerns. Thus
in order to correct the inadequacy, it may be necessary to do more than restructure the finance
system.191 Referencing the aforementioned administrative specificity of state education articles,
he concludes that courts may be more willing to recognize a new duty under an education
clause, and as a result, more likely to recognize an adequacy standard.197 Exploring the genesis
of adequacy strategies, Wood has noted that:
A few of these suits have emerged after the applicable state supreme court has
ruled that equity was either already met or only the legislature could define such
a concept. In a few instances, these suits essentially questioned the concept of
equality of poverty. That is to say, if a state aid distribution formula allocates
funds in an equitable manner, but such funds were by definition unable to meet
various educational and academic standards, such a distribution formula would
be inadequate by definition.193
Further, he marks that in the movement toward greater educational accountability and raising
academic standards for the public schools of a given state, the legislature has, unsuspectingly,
defined by statute what makes an adequate education.194 Deborah Verstegen has also pointed to
the adoption and codification into law of challenging national educational goals aimed at
ambitious outcomes for all childrenand subsequent standards setting movement enveloping the
states.195 Assessing how state courts have utilized these standards. Verstegen observed that
courts have not been confined by these statistical parameters, writing that:
[T]he high courts invalidating state finance systems have found an adequate
education is defined by the best system, it is a quality system; it provides
excellence in education, it equipts all children with certain competences that
allow them to compete in the labor marketacross the country and
internationally as well.196


46
Appraising the implications of the emerging appeal and codification of accountability and
standards, Rebell has observed that:
The standards based reform movement, which responded to a widespread
sentiment that American education was in serious trouble in the late 1980s,
provided the tools that courts needed to deal with complex education
issues...The extensive education reform initiatives most states adopted to meet
this challenge provided the courts workable criteria for developing the judicially
manageable standards that were necessary to craft practical remedies in these
litigations.197
According to Odden and Picus, the emphasis on standards influenced legislators in addition to
providing criteria for litigation. They noted that:
As the 1990s ended and the twenty-first century began, policymakers
increasingly wanted to know how much money was needed to educate students to
high standards; how those dollars should be distributed effectively and fairly
among districts, schools, programs, and students; and how both level and use of
dollars affected student performance. These policy demands are pushing school
finance beyond its traditional emphasis on fiscal equity.198
The standards and accountability initiative, incorporated within an adequacy challenge,
serves to address an inherent weakness in equity arguments; the inability to correlate
discrepancies in funding with inadequate educational systems. Speaking to this issue in Gould v.
Or,199 the Nebraska Supreme Court wrote that:
While appellants petition is replete with examples of disparity among the
. various school districts in Nebraska, they fail to allege in their petition how these
disparities affect the quality of education the students are receiving...although
appellants petition alleges the system of funding is unequal, there is no
demonstration that the education each student is receiving does not meet
constitutional requirements.200
Minorini and Sugarman have proffered that concerns other than equity gained a higher
national profile, suggesting the standards and accountability movement demonstrated that
attention had begun to turn away from the problems of inequalities in school spending to the
shortcomings of public education from top to bottom... productivity importantly replaced
inequality as the salient reform object....201
Heise suggested that adequacy arguments referencing educational funding appeal to the
norms of fairness and opportunity, and present fewer logistical, theoretical and political


47
difficulties. He observes that [ajdequaey 'litigation seeks to assist the most troubled school
systems as opposed to the decidedly more complicated and difficult task, of reducing per-pupil
spending differences by either increasing spending (leveling up), or reducing existing spending
(leveling down), or a combination of the two.202 In addition, adequacy decisions do not pose a
threat to local control of schools given that they do not focus on reducing per-pupil spending
differencesa product of local property tax revenues influence on school finance systems
thereby a direct confrontation with local control.203 Heise accurately notes that local control is
among the salient characteristics that distinguishes American school systems from other systems
throughout the world. Courts, particularly the U.S. Supreme Court, recognize the sanctity of local
control and agree that it is a legitimate governmental interest....204 Also entertaining the
institution of local control, Enrich detailed its normative appeal. He commented that:
[T]he imagery of local control paints the contrast between local school district
and state in a manner reminiscent of the familiar contrasts between individual
and government, and between public and private...what is at stake is depicted as
the freedom to deploy ones own resources for ones own purposes and
benefit...the prospect of state-level constraints on local fiscal control raises the
fear that local autonomy over substantive education decisions will be displaced
by the dictates of a distant faceless bureaucracy.205
In accord with other scholars, Heise also noted the utility of the emerging standards, though
offering that educational standards not only assist adequacy litigants, but standards also may
attract such litigation.206 Proffering another strategically salient dimension, Heise holds that
adequacy evidences a greater appeal for urban districts. He found urban districts ambivalent as
to participation in equity litigation, citing that data suggest that urban school systems might
actually lose financially in an effort to equalize per-pupil spending.207 Not surprisingly, these
school districts which generally spend more than the state average would be resistant to engaging
in litigation that sought an equitable distribution of funds.
Providing yet another perspective, Minorini and Sugarman believe that early litigation to
eliminate racial segregation provides a unique insight into the emerging adequacy movement.
They noted that the litigation strategy in the first half the twentieth century [sic] was to show


48
that the segregated schooling provided for blacks was inferior to what was provided whites and
hence in violation from the equal protection of the law requirement of the Fourteenth
Amendment....208 Charting an evolving legal strategy, the authors point to Cummings v. Board
of Education Missouri, ex. rel. v. Canada,210 Sweatt v. Painter,211 and McLaurin v. Oklahoma
State Regents;212 actions of which they suggested the Courts emphasis moved away from
conventionally measured educational resources to an emphasis on intangibles.213 This concern
with intangibles was accentuated in Brown, as the Court held that black elementary and
secondary school students were unconstitutionally denied equal educational opportunities, even in
those instances where the schools involved had been equalized in terms of infrastructure and
instructional staff. In setting the stage for adequacy, Minorini and Sugarman proposed that:
[Although the test of equality throughout these series of cases was always
applied to educational input differentials, over time the inputs that were
compared increasingly included those beyond mere financial resources and the
things money buys directly. In other words, the Court became increasingly
concerned with what the students were likely to gain from their educational
experience.214
Regarding school desegregation litigation of a more recent vintage, particularly that of the 1970s
and 1980s, they found that courts began to focus primarily on ordering improvements in the
education enterprisesuch as teacher quality, curriculum, facilities, and other support staffthat
were in many respects independent of student assignment related desegregation goals.215 This in
conjunction with the fact that the courts had relaxed the assignment standards that applied to
school districts that had previously discriminated but had instituted judicially mandated remedies
presented a mixed judicial message; compelling advocates to fear a diminution in efforts to
improve educational opportunities targeted toward minority students.216 As a result, many came
to view education finance litigation targeted at adequacy as a promising, if not the only, option.217
Contemplating contemporary trends, observers traced adequacys emergence to a
growing dissatisfaction with the tangible outcomes of school finance equity cases even when they
were successfully litigated.218 Woods aforementioned characterization of an equality of


49
poverty2,9 speaks to those concerns, while Minorini and Sugarman also point to, as did Heise,220
the difficulties equity cases present for urban districts. Regarding these school districts, they
made note of the fact that these districts faced higher staffing costs, had a higher percentages of
students with exceptional needs and that they had to provide so many other local services that
their tax base was not really as available to be drawn on for education as would appear from a
simple calculation of local district capacity....221
Scrutinizing the effects of education finance litigation, William Fischel proposed that the
legislative legacy of the Serrano actions in California contributed to the passage of Proposition 13
in 1978; a state tax initiative that limited property tax rates, required a two-thirds vote of the
legislature to increase state taxes and prohibited the imposition of a statewide property tax.222
While suggesting that this tax revolt represented the dynamic of which they addressed as
spurring the movement toward adequacy suits, Minorini and Sugarman proposed that the
California experiences with wealth discrimination theory unnerved many people, again leading
them to search for alternative theories.223 They noted, as did Fischel. that as a result of the
initiative the size of government was sharply curtailed and that rapidly California dropped from
being one of the states that spent most generously on public schools to one of the lowest.224
Appraising these dynamics, Minorini and Sugarman concluded that for needy children attending
high-cost, urban schools, school finance litigation would be far more attractive if it could be cast
more widely than the conventional wealth discrimination approach.225
In 1981 Samuel Huntington in American Politics: The Promise of Disharmony226
persuasively argued that there persisted in America a gap between the promise of American ideals
and the performance of American politics and government. Compelled by a democratic
imperative, he proposes that the nation cyclically attempts to reconstruct its institutions to reflect
the core values of liberty, equality, individualism, and democracy.227 In contributing an analytical
framework divorced from any particular legal doctrine, Rebell incorporated Huntington's thesis
while weaving an explanation for the strategic shift from equity to adequacy. Employing the


50
conceptual framework of Huntingtons work, he argued that adequacys ascending currency
demonstrates:
[T]he resurgence of a powerful democratic imperative at the core of the
American political tradition. This democratic imperative proclaims that the
nation cannot permanently abide a situation in which large numbers of children
are denied an adequate education, and in which those with the greatest
educational needs systematically receive the fewest educational resources/'8
As clearly illuminated by the textual and normative nature of an evolving appreciation of
education finance, both in theory and administration, there is an ever-present tension between the
concerns for equality and autonomy. Addressing this dynamic in light of his contention of a
democratic imperative at play in education, Rebell proposes that the public was uncomfortable
with the first wave of litigation; particularly rulings such as that of Serrano which carried
fundamentality too far. At the same time, he contends that the public was just as discomfited by a
system of full liberty which countenanced the creation and maintenance of vast funding
discrepancies.229 Explaining why this struggle often presents as particularly acute, Rebell writes
that:
Education is the sector of American society in which the liberal, republican and
egalitarian ideals have been most consistently and harmoniously expressed
because schooling promises to provide all the nations children with an equal
opportunity to gain the skills necessary to pursue individual advancement and the
civil values required to participate actively in the democratic culture.230
In Rebells estimation, that these concerns in the midst of an inherent values conflict, led to an
appreciation for adequacy in lieu of equity resulted from four interrelated educational
developments; the growing sentiment that public education in America was in serious trouble and
placing the nation at a potential international competitive deficit; the awareness that the
desegregation initiatives of the 1950s and 1960s have failed to demonstrate sufficient educational
improvement among minority students; the standards and accountability movement that was
premised on the belief that given appropriate support and resources, virtually ail students can
perform a relatively high academic levels; and the awareness of the increasing social and civil
role schools were being tasked with.231 Of the later point, Rebell conceptually revisits the


51
strategic tack of plaintiffs in early educational finance litigation actions challenging funding
systems on federal constitutional grounds; attempting to establish the nexus between education
and the exercise of fundamental rights, particularly those facilitating full participation in a
democratic society. He contends that schools are now seen has having a significant new
institutional role in transmitting the values necessary to perpetuate the democratic political
system.232
The relationship between education and citizenship has certainly predated education
finance litigation. Thomas Jefferson pointed out that some degree of education is necessary to
prepare citizens to participate effectively and intelligently in our open political system if we are to
preserve freedom and independence.233 Alex de Tocqueville observed that in the United States
the instruction of the people powerfully contributes to the support of the democratic republic.234
Just as clear, on the part of educational theorists and finance reform advocates, is the reorientation
of educational governance, administration, provision of resources and legal strategies from a
concern with equity to an embrace of adequacy. Yet, as Verstegen has noted, the concept of an
adequate education emerging from state courts invalidating school finance systems goes well
beyond a basic minimum educational program....235 Certainly, the proposed nexus between
education and fundamental rights has witnessed a metamorphosis in sanction within the state
judiciary; at the least it bears a strikingly indeterminate nature. Perhaps such a dynamic is
inevitable, reflecting the understanding of the Wisconsin Supreme Court which opined that the
definition of an adequate education is not static and necessarily with change.236 The
conceptualization of the judiciary within the context of restraint and activism and how the
principles of equity and adequacy factor into that equation mirrors this subjective and
philosophical calculation.
Notes
1 James G. Ward, Conflict and Consensus in the Historical Process: The Intellectual Foundations
of the School Finance Reform Litigation Movement, in, 24 JOURNAL OF EDUCATION FINANCE 1,2 (1998).


52
2 Roe Johns, Some Critical Issues in School Financing, in, Constitutional Reform of School
Finance 158 (K. Alexander & K. Jordan, eds., D.C. Heath, 197.3).
J James Pulliam, History of Education in America (4th Merrill, 1987).
4 Bernard Bailyn, Education in the Founding of American Society 25 (University of North
Carolina Press, 1960).
5 Paul Mort & William Reusser, Public School Finance: Its Background. Structure and Operation
(McGraw-Hill, 1951).
6 Charles Hull, ed., The Economic Writings of Sir William Petty 145 (Cambridge University
Press, 1899).
7 Earnest Johnson, The Place of Learning, Science, Vocational Training and "Art in Pre-
Smithian Thought, in, 24 JOURNAL OF ECONOMIC HISTORY 129, 132 (1964).
8 Johns, supra note 2 at 158.
9 Allan Odden & Larry Picus, School Finance: A Policy Perspective 9 (3rd McGraw-Hill, 2004).
10Id. at 10.
11 Steve Rippa, Education in a Free Society: An American History (Longman, 1997).
12 Id. at 100.
13 Id. at 101.
14 Id. at 102.
15 Id. at 102.
16 Harpers Register of Pennsylvania Vol. 15, 8 (May 2, 1835).
17 Morton Horwitz, The Transformation of American Law. 1870-1960 20 (Oxford University
Press, 1992).
18
Ward, supra note 1 at 6.
19 Id.
20
Johns, supra note 2 at 159.
21 163 U.S. 537 (U.S. 1896).
22 Id. at 544.
23 R. Craig Wood & David Thompson, Educational Finance Law: Constitutional Challenges to
State Aid PlansAn Analysis of Strategy 5 (2nd NOLPE, 1996).
24 Id.
25 Cummings v. Richmond, 177 U.S. 528 (U.S. 1899) at 544.


53
26 See Wood, supra note 23.
2' E.P. Cubberley, School Funds and Their Apportionment (Teachers College, 1905).
28 Id. at 17.
29 Id. at 16-17.
30 Johns, supra note 2 at 161 (citing Eilwood Cubbereley).
31 Wood, supra note 23 at 7.
32 Harland Updegraff, Rural School Survey of New York State: Financial Support (By the Author,
1922).
j3 Johns, supra note 2 at 161.
34 See Odden, supra note 9 at 137.
35 Report of the Educational Finance Inquiry Commission. Yol. 1 (McMillan. 1923).
6 George D. Strayer & Roger Haig, The Financing of Education in the State of New York, in.
Report of the Educational Finance Inquiry Commission, Yol, 1 173 (McMillan, 1923).
37 Id. at 174-75.
See Wood, supra note 23 at 7.
39
Strayer, supra note 36 at 174.
40 See Wood, supra note 23 at 7.
41 Johns, supra note 2 at 163.
42 Paul Mort. The Measurement of Educational Need 6-7 (Teachers College, 1924).
43 Wood, supra note 23 at 9.
44 Henry Morrison, School Revenue 214 (University of Chicago Press, 1930).
45 Johns, supra note 2 at 165.
46 Morrison, supra note 44 at 220-21.
41 See, e.g., C.S. Benson. The Economics of Public Education IHoughton-Mifflin. 1978).
48 Wood, supra note at 9.
49 Johns, supra note at 157.
50 347U.S. 483 (U.S. 1954).
51 Supra note 20.


54
52 Brown, 347 U.S. at 492-93.
53 Wood, supra note 23 at 10.
34 Thomas Lowi, The End of the Republican Era 17 (University of Oklahoma Press, 1995); See
also, Justice Cardozos opinion in Helvering v. David, 301 U.S. 619 (U.S. 1937).
55 See Arthur Wise, Is Denial of Educational Opportunity Constitutional?, in, 13
Administrators handbook 6 (1965).
56 Arthur Wise, Rich Schools. Poor Schools: The Promise of Equal Educational Opportunity 197
(University' of Chicago Press, 1968).
57 Id. at 198.
58 John Coons, et. al., Private Wealth and Public Education (Harvard University Press, 1970).
59
James G. Ward, Ethics and Legitimzation of the Pursuit of Equity in School Finance, in, 23 ST.
Louis Univ. pub. Law Rev. 2 487,493 (2004).
60 Coons, supra note 58 at 304; Proposition I their core legal principle has come to be known as
fiscal or wealth neutrality.
61 Paul Minorini & Steve Sugarman, Educational Adequacy and the Courts: The Promise and
Problems of Moving to a New Paradigm, in, Equity and Adequacy in Education Finance: Issues and
Perspectives 181, 182 (Helen Ladd, et. al. eds., National Academy Press, 1999).
62 Harold Horowitz, Unseparate but Unequal: The Emerging Fourteenth Amendment Issue in
Public School Education, in, 13 UCLA Law Rev. 1147 (1970).
63 See Chapter 4 of accompanying text for a detailed discussion of the conceptual groundings of
vertical equity.
64 Paul Minorini & Steve Sugarman, School Finance Litigation in the Name of Educational
Equity: Its Evolution, Impact, and Future, in, 34, 36-37, supra note 61.
65 293 F. Supp. 327 (N.D. Ill. 1968).
66 Mclnnis v. Ogilvie, 394 U.S. 322 (U.S. 1969).
67 3 1 0 F. Supp. 572 (W.D. Va. 1969).
68 Id. at 574.
64 487 P.2d 1241 (Cal. 1971) [hereinafter Serrano 7].
70 Michael LaMorte, School Laws: Cases and Concepts 348 (7th Allyn and Bacon, 2002)
'1 Serrano v. Priest, 89 Cal Rptr. 345 (Cal. 1970).
72 Id. at 348.
73 Id. at 350.
74 See Serrano I, supra note 69.


55
75
" Wood, supra note 58.
76 Charles Russo, Reutters The Law Of Public Education 320 (5tn Foundation Press, 2004) (citing
the opinion in Serrano I).
77 See R. Craig Wood, Constitutional Challenges to State Education Finance Distribution
Formulas: Moving from Equity to Adequacy, in, 23 St. LOUIS UNIV. PUB. Law Rkv. 531, 546 (2004).
78 Serrano 487 P.2d at 1253.
79 Wood, supra note 77 at 546.
80 337 F. Supp. 280 (W.D. Tex. 1971).
81 Id. at 284.
82 41 1 U.S. 1 (U.S. 1973).
83 Id. at 27-28.
84 Wood, supra note 23 at 7.
85 Rodriquez, 411 U.S. at 35.
86 Id. at 37.
87 Id. at 17.
88 Mclnnis v. Shapiro, 293 F. Supp. 327 (N.D. Ill., 1968).
89 ik
Michael Rebell, Educational Adequacy, Democracy and the Courts: The Promise and Problems
of Moving to a New Paradigm, in, Equity and Adequacy in Education Finance: Issues and Perspectives 177
(Helen Ladd, et. al. eds, National Academy Press, 1999).
90 Rodriquez, 411 U.S. at 36.
91 Id. at 54.
92 Id. at 56.
93 Id.
94
Michael Heise, State Constitutions, School Finance Litigation and the Third Wave: From Equity
to Adequacy, in, 68 Temple Law Rev. 1151, 1154(1996).
95
David Thompson, School Finance and the Courts: A Reanalysis of Progress, in, 59 WESTS
Law Rep. 945 (1990).
96 Plyler v. Doe, 457 U.S. 202 (U.S. 1982).
97 Kern Alexander & M. David Alexander, American Public School Law (5th Wadsworth, 2001).
98
James Nowak, etl al., Constitutional Law 531 (West Publishing, 1986).
99 Plyler, 457 U.S. at 221.


56
100 Thompson, supra note 95 at 952.
101 478 U.S 202 (U.S. 1986).
102
Section Sixteen lands were originally introduced in the Land Ordinance of 1785. The
ordinance provided that such lands be utilized in generating funds for public education. Plaintiffs argued in
the instant case that the disparities in distribution resulting from the systems disruption arising from the
Civil War constituted a violation of the Equal Protection Clause.
103 Pap asan, 478 U.S. at 280.
104 Id. at 285 (White, J., concurring).
105 Wood, supra note 77 at 542.
106 Thompson, supra note 95 at 950.
107 487 U.S. 450 (U.S. 1988).
108 Id. at 466 (Marshall, J., dissenting).
109 Thompson, supra note 95 at 953.
110 Wood, supra note 77 at 543.
111 See, e.g., William Thro, Judicial Analysis During the Third Wave of School Finance Litigation:
The Massachusetts Decision as a Model, in, 35 B.C. Law Rev. 4 498 (1994); G. Levine, Meeting the Third
Wave: Legislative Approaches to Recent School Finance Rulings, in, 29 HARVARD J. ON LEG .(1994); J.
Underwood & W. Sparkman, School Finance Litigation, in, 14 Harvard J. L. & PUB. POE. 517 (1991).
112 303 A.2d 273 (N.J. 1973).
113 792 S.W.2d 186 (Ky. 1989).
114 Heise, supra note 94 at 1153.
115 Paul Enrich, Leaving Equality Behind: New Direction in School Finance Reform, in, 48
Vanderbilt Law Rev. 101,117(1995).
116 See, e.g., Wood, supra note 77; Lowi, supra note 53.
117 Enrich, supra note 115 at 116.
113 351 U.S. 12 (U.S. 1956).
119 383 U.S. 663 (U.S. 1966); See also, Lubin v. Panish, 415 U.S. 709 (U.S. 1974); Shapiro v.
Thompson, 394 U.S. 618 (U.S. 1969).
120 Enrich, supra note 115 at 118.
121 Id. at 119.
122 3 96 U.S. 186(1962).
123
377 U.S. 533 (1964).


57
124 394 U.S, 618 (1969).
125
Minorini, supra note 61 at 182.
126 Enrich, supra note 115 at 119-20.
127 Id. at 121.
128 Wood, supra note 77 at 533.
129
Phillip Kurland, Equal Educational Opportunity: The Limits of Constitutional Jurisprudence-
Undefined, in, 35 U. Chi. Law Rev. 583 (1968).
130 Wood, supra note 77 at 535 (internal citation omitted).
131 Enrich, supra note 115 at 128.
132 Supra note 111.
133 Id. at 283.
134 See Wood, supra note 23.
135 N.J. Const, art. VIII, § 4.
136 Robinson, 303 A.2d at 294.
137
Heise, supra note 94 at 1160.
lj8 Wood, supra note 23 at 69.
139
Robert F. Utter, Freedom and Diversity in a Federal System: Perspective on State
Constitutions and the Washington Constitution's Declaration of Rights, in, 7 U. PUGET SOUND L. Rev. 507
(1984).
140 420 U.S. 714 (U.S. 1975).
141 Id. at 719.
142 See William Karasik, Equal Protection of the Law Under the Federal and Illinois
Constitutions: A Contrast in Unequal Treatment, in, 30 De Paul Law Rev. 263 (1981).
143 William Thro, To Render Them Safe: The Analysis of State Constitutional Provisions in Public
School Finance Reform, in, 77 VIRGINIA Law Rev. 1639, 1670-71 (1989).
144 Heise, supra note 94 at 1 157-59.
145 Wood, supra note 77 at 548-49.
146 Richard Grubb, Breaking the Language Barrier: The Right to Bilingual Education, in, 9
Harvard C.r.-C.L. Law Rev. 9,52 (1974).
147
Thro, supra note 143 at 1672.


58
148 Molly McUsic, The Use of Education Clauses in School Finance Reform Legislation, in, 28
Harvard J. on Leg. 307, 320 (1991) (citing Mont. Const, art. X, § 7).
149 Id. at 325 (citing Alaska Const, art. Vil, § 1).
1,0 id. at 324 (citing Ill. Const, art. X, § 1).
151 Id. at 325 (citing Kan. Const, art VI, § 1).
152 Id. at 336.
153 See, e.g, Olsen v. State, 554 P.2d 239 (Or. 1976) and Robinson v. Cahill, 303 A.2d 273 (N.J.
1973). Both courts addressed constitutional mandates that spoke to the provision of a thorough and
efficient system of education and reached opposite conclusions as to the phrases implications; the Oregon
court ruling that it did not speak to an equity demand, while the New Jersey court held that financing
disparities rendered the states funding scheme constitutionally infirm. See also, Chapter 5, accompanying
text.
154 Julie Underwood, School Finance Litigation: Legal Theories, Judicial Activism, and Social
Neglect, in, 20 Journal of Education Finance 143,150 (1994).
155 Wood, supra note 77 at 550-51.
156 See, e.g., James Guthrie & Richard Rothstein, Enabling Adequacy to Achieve Reality;
Translating Adequacy into State School Finance Distribution Arrangements, in, Equity and Adequacy in
Education Finance: Issues and Perspectives 209 (Helen Ladd, et. al. eds., National Academy Press, 1999).
157 William Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The
Massachusetts Decision as a Model, in, 35 B.C. Law Rev. 597, 598-99 (1994).
1 R
Odden, supra note 9 at 38.
1 SQ
Thro, supra note 157 at 603.
160 Heise, supra note 94 at 1162.
161 585 P.2d 684 (Wash. 1978).
162 Minorini, supra note 64 at 35.
163 769 P.2d 684 (Mont. 1989).
164 255 S.E.2d 859 (W.Va. 1979).
165 See, e.g., Minorini, supra note 64; Thro, supra note 110; Levine, supra note 110.
166 790 S.W.2d 186 (Ky. 1989).
167 Id. at 215.
168 See Odden, supra note 9 at 39.
169 Rose, 790 S.W.2d at 197.
170 Id.


59
171 Id. at 212; See Chapter 5, accompanying text for detailed discussion of Rose.
l7' Kern Alexander, The Common School Ideal and Limits of Legislative Authority: The Kentucky
Case, in, 28 Harvard J. on Ed. 341,345 (1991).
173 Michael Rebell, Educational Adequacy, Democracy and the Courts, in, Achieving High
Educational Standards for All: Conference Summary 218. 235 (T. Ready, et. al. eds., National Academy
Press, 2002).
174 Enrich, supra note 115 at 145.
175 Id. at 150.
176 Id. at 160.
177 Id.
178 Rebell, supra note 173 at 231.
] 79
Ward, supra note 1 at 18.
180 j aa
Id. at 22.
181
A. Reschovaky, Fiscal Equalization and School Finance, in, Al NATIONAL Tax JOURNAL 185
(1994).
182
Cass Sunstein, The Partial Constitution 168 (Harvard University Press, 1993).
183 Id.
184 Enrich, supra note 115 at 154-55.
185 Id. at 167.
186 344 F. Supp. 1068 (D. Md. 1972).
187
Id. at 1079; See Chapter 5, accompanying text for a discussion of Parker.
188
Enrich, supra note 115 at 167.
189 Thro, supra note 157 at 603.
190 Id. at 605.
191 Id. at 608.
192 Id.
193
Wood, supra note 77 at 551 (internal citations omitted).
194 Id. at 552.
195
Deborah Verstegen, Judicial Analysis During the New Wave of School Finance Litigation: The
Adequacy in Education, in, 24 JOURNAL OF EDUCATION FINANCE 51 (1998).


60
196 id.
197 Rebell, supra note 173 at 228.
IQg
Odder, supra note 9 at 1; See also Wood, supra note 77 at 552-53 detailing adequacy studies in
North Dakota, South Carolina, California, and Oregon.
199 506 N.W.2d 349 (Neb. 1993).
200 Id at 353.
201
Minorim, supra note 61 at 186.
202 Heise, supra note 94 at 1174.
203 Id
204 Id. at 1170.
205 Enrich, supra note 115 at 160.
i06 Heise, supra note 94 at 1176.
207 Id.
208 Minorini, supra note 61 at 177.
209 1 75 U.S. 528 (U.S. 1899).
210 305 U.S. 337 (U.S. 1938).
211 339 U.S. 629 (U.S. 1950).
212 339 U.S. 637 (U.S. 1950).
21j Minorini, supra note 61 at 177.
2.4 Id
2.5 Id at 187.
216 See David Tatel, Desegregation Versus School Reform, Resolving the Conflict, in, 61
Stanford Law Rev. (1992) for a discussion of the reaction to a changing judicial paradigm.
217
Minorini, supra note 61 at 188.
218
See, e.g., Enrich, supra note 115.
219 See Wood, supra note 193.
220 See Heise, supra note 94 at 1176.
221 Minorini, supra note 61 at 184.


61
222
William Fischel, Did Serrano Cause Proposition 13?,in, 42 NATIONAL Tax JOURNAL 467
(1989).
223
Minorini, supra note 61 at 185.
224 Id. at 186.
225 Id. at 188.
226
Samuel P. Huntington. American Politics: The Promise of Disharmony (Belknap Press, 1981).
227 Id.
228
Michael Rebell, Fiscal Equity Litigation and the Democratic Imperative, in, 24 JOURNAL OF
Education Finance 23,24 (1998).
229 Id. at 30-33.
230 Id. at 31-32.
231 Id. at 34-36.
232 Id. at 36.
233 Thomas Jefferson, cited in Wisconsin v. Yoder, 406 U.S. 205 (U.S. 1972) at 221.
234 Alex de Tocqueville, Democracy in America 329 (Vintage Press, 1961).
i35 Verstegen, supra note 194 at 67.
236 Campbell City School District v. State, 907 P.2d 1238 (Wis. 1995).


CHAPTER 3
THE JUDICIAL BRANCH
Scarcely any political question arises in the United States that is not resolved,
sooner or later, into a judicial question. Hence, all parties are obligated to borrow
in their daily conversation, the ideas and even the language peculiar to judicial
proceedings.1
Jurisprudence in the American democracy remains an integral part of the nations
political and social conversation, subject only to gradations of intensity as particular rulings or
judicial dispositions seize popular and scholarly attention. Education finance litigation lies
squarely within this discussion, given the fiscal, normative, and jurisdictional implications and
premises at play in these actions. In order to better appreciate this area of American jurisprudence
amidst the totality of the nations judicial conversation, it is necessary to consider judicial
theory, constitutional interpretation, and the unique nature of state courts and constitutions. Such
consideration must distinguish state judiciaries and these courts institutional and administrative
roles from that of the federal courts. While the concept of judicial function and role has often
been considered in general terms, the doctrines which apply to the United States Supreme Court
and the lower federal courts, referred to herein as Article III courts,2 are not completely apposite
to state court adjudication. This chapter of the study offers a treatment of each in tum, providing
the context within which the course of education finance litigation may be contemplated.
Constitutions specify the delegation of governmental powers, v/hile identifying rights
which the government cannot violate. The authority granted to courts to consider whether the
actions of the government are consistent with these tenets and to invalidate those which fail to
evidence fidelity with same is known as judicial review.3 The simple directness of this principle
belies the complexity of the fundamental question it continues to present to constitutional law and
the role of the judiciary: the justification for and scope of judicial review. Considerations of
62


63
judicial restraint and judicial activism, justiciability, separation of powers and constitutional
theory and interpretation are enveloped within the basic tenets of judicial review. Care must be
exercised not to confuse the polarities exhibited within these considerations with the power of
judicial review itself; the fact that a court may interpret a constitution and other laws is not
indicative in and of itself of a particular judicial posture.4
The authority to determine the meaning and application of a written constitution failed to
gamer even mention in the Federal Constitution.5 Yet, as Alexander Bickel observed, [tjhis is
not to say that the power of judicial review cannot be placed in the Constitution; merely that it
cannot be found there.6 Considering the development of the institution of the judiciary and
judicial review Bickel noted that:
Congress was created very nearly full blown by the Constitution itself. The vast
possibilities of the presidency were relatively easy to perceive and soon,
inevitably, materialized. But the institution of the judiciary needed to be
summoned out of the constitutional vapers, shaped, and maintained... [yet] it is as
clear as such matters can be that the Framers of the Constitution specifically, if
tacitly, expected that the federal courts would assume a powerof whatever
dimensionsto pass on the constitutionality of the actions of Congress and the
President, as well as of the several states.7
Constitutional historian David OBrien provided the perspective that:
The Framers failed to think through the power of judicial review and its
ramifications for constitutional politics...The Constitution... is not self
interpreting and crucial principles such as judicial review...are presupposed
rather than spelled out...in creating separate institutions that share specific and
delegated powers, the Constitution amounts to a prescription for political struggle
and an invitation for an ongoing debate about constitutional principles.8
The essence of the difficulty in defining and establishing the parameters for the institution was
that judicial review presents as a countermajoritarian force in American democracy.9 Bickel,
while weaving an historical and jurisprudential justification for review, nonetheless
acknowledged that judicial review is a deviant institution50 in a democracy; given the power
conferred to the judiciary to apply and construe a constitution or law against the wishes of
legislative majority and hence the citizenry of the republic. The inherent anti-democratic nature of
an independent and strong judiciary drew the attention of Federalists and Anti-Federalists alike as


64
the nascent nation struggled though a constitutional confirmation. Alexander Hamilton, a
proponent of a judiciary serving to check the executive and legislative branches, conceived that it
would stand as an intermediate body between the people, with a constricted authority. Regarding
the judiciary as the least dangerous branch, Hamilton wrote thai:
Whoever attentively considers the different departments of power must perceive,
that in a government in which they are separated from each other, the judiciary,
from the nature of its functions, will always be the least dangerous to the political
rights of the Constitution; because it will be least in a capacity to annoy or injure
them. The executive not only dispenses the honors, but holds the sword of the
community. The legislature not only commands the purse, but prescribes the
rules by which the duties and rights of every citizen are to be regulated. The
judiciary, on the contrary, has no influence over either the sword or the purse, no
direction either of the strength of the wealth of the society, and can take no active
resolution whatever. It may truly be said to have neither FORCE nor WILL, but
merely judgment; and must ultimately depend upon the aid of the executive arm
even for the efficacy of its judgments."
The Anti-Federalist, Robert Yates was not as sanguine as Hamilton, asserting that:
There is no authority that can remove [supreme court justices], and they cannot
be controuled by the laws of the legislature. In short, they are independent of the
people, of the legislature, and of every power under heaven. Men placed in this
situation will generally soon feel themselves independent of heaven itself...The
opinions of the supreme court, whatever they may be, will have the force of law;
because there is no power provided in the constitution, that can correct their
errors, or controul their adjudication.12
Powers and Rothman remarked that Hamilton defended the Courts independence by arguing
that judges would primarily rule on the letter of the law and refrain from pronouncements as to its
spirit.13 While wagering that institutional and cultural constraints would provide a sufficient
check on the judicial branch, Hamilton acknowledged that in granting the independent power to
interpret the law there was no guarantee that judges would not stray beyond the letter of the
law. In The Federalist #81,14 Hamilton, while recognizing that mistakes and abuses were
possible, did not perceive a significant threat to democracy, writing that:
The supposed danger of judiciary encroachments on the legislative authority
which has been upon many occasions reiterated is in reality a phantom. Particular
misconstructions and contraventions of the will of the legislature may now and
then happen; but they can never be so extensive as to amount to an
inconvenience, or in any sensible degree to affect the order of the political
system. This may be inferred with certainty from the general nature of the


65
judicial power; from the objects to which it relates; from the manner in which it
is exercised; from its comparative weakness; and from its total incapacity to
support its usurpation by force.15
It remained for Chief Justice John Marshalls opinion in the 1803 case of Marbury v.
Madison,16 to establish the authority of the courts to review under the Constitution the actions of
the other branches of government. Justice Marshall proposed that:
The question, whether an act, repugnant to the constitution, can become law of
the land, is a question deeply interesting to the United States; but, happily, not of
an intricacy proportioned to its interest. It seems only necessary to recognize
certain principles, supposed to have been long and well established, to decide it.17
Marshalls confident tone continued as he asserted that:
The powers of the legislature are defined, and limited; and that those limits may
not be mistaken, or forgotten, the constitution is written. To what purpose are
powers limited, and to what purpose is that limitation committed to writing, if
these limits may, at any time, be passed by those to be restrained? The
distinction, between a government with limited and unlimited powers, is
abolished if these limits do not confine the persons on whom they are imposed,
and if acts prohibited and acts allowed, are of equal obligation. It is a proposition
too plain to be contested, that the constitution controls any legislative act
repugnant to it or, that the legislature may alter the constitution by an ordinary
act.1*
In essence, to leave the decision to the legislature was to allow those who the constitution was
constructed to limit to set those limits.19 The Chief Justice held that [i]t is emphatically the
province and the duty of the judicial department to say what the law is...[and that] the judicial
power of the United States is extended to all cases arising under the constitution.20
Over 150 years later, Chief Justice William Rehnquist, distilled the decision in Marbury, writing
that:
The ultimate source of authority in this Nation, Marshall said, is not Congress,
not the states, not for that matter the Supreme Court of the United States. The
people are the ultimate source of authority; they have parceled out the authority
that originally resided entirely with them by adopting the original Constitution
and by later amending it. They have granted some authority to the federal
government and have reserved authority not granted it to states or to the people
individually...if the popular branches of governmentstate legislatures, the
Congress, and the Presidencyare operating within the authority given them by
the Constitution, their judgment and not that of the Court must prevail. When
these branches overstep the authority given them by the Constitution...the Court
must prefer the Constitution to government acts.21


66
According to Chief Justice Rehnquist, John Marshalls opinion justified an independent federal
judiciary vested with the power to review government actions given that it framed the role of the
justices as detached and objective observers engaged in the interpretation of an instrument framed
by the people.22 Another heir to the Chief Justice position, Earl Warren commented that:
Insistence upon the independence of the judiciary in the early days of our nation
was perhaps John Marshalls greatest contribution to constitutional law. He aptly
stated that controlling principle when, speaking of the court during his tenure, he
said that he had never sought to enlarge the judicial power beyond its proper
bounds, nor feared to carry it to the fullest extent that duty required.23
Stimson has drawn attention to the Marshalls concurrence with Hamiltons thesis that
the courts should be vested with the power of judicial review, remarking that Marshall shared
Hamiltons legalistic conception of constitutional structure as a hierarchy of laws which placed
judgment and judicial authority firmly at the center of liberal politics....24 Marshalls reasoning
also reflected Hamiltons response to the countermajoritarian ramifications of judicial review; of
the possible usurpation of power at the expense of the elected government, Hamilton contended
that the principle did not suppose superiority of judicial to legislative power.25 Rather, judicial
review only supposes that the power of the people is superior to both; and that where the will of
the legislature declared in its statutes, stands in opposition to that of the people, declared in the
Constitution, the judges ought to be governed by the latter rather than the former.26
Warren Burger, yet another Chief Justice in 1972 commented on Marbury, and noted that
although the Constitution made no mention of judicial review, Marshall was not and never
claimed to be the originator of the doctrine since he was well aware of the growing acceptance of
the idea that constitutional adjudication was inherent in the very nature of a written
constitution.27 Beyond his notation of the opinion itself, the historical record supports Chief
Justice Burgers view on the eras legal climate. A decade prior to Marbury the Supreme Court
confirmed that state laws contrary to the Federal Constitution were invalid. In Van Horne Lessee
v. Dorrance,28 Justice Patterson wrote I take it to be a clear position; that if a legislative act


67
oppugns a constitutional principle, the former must give way and.. .it will be the duty of the Court
to adhere to the Constitution and to declare the act null and void.29 A leading jurist of the time,
Spencer Roane, then a judge on the Virginia Court opined in Kamper v. Hawkins,30 that [i]f the
legislature may infringe upon this Constitution [of Virginia], it is no longer fixed...and the
liberties of the people are wholly at the mercy of the legislature.31 These two opinions also
present as congruent with the response to the countermajoritarian fears proffered by John
Marshall and Alexander Hamilton. Alexander Bickel, credited with actually introducing the
epigram [countermajoritarian] would subsequently justify judicial review not on the basis of an
inherent institutional weakness; rather he proclaimed it the Courts role to pronounce and guard
public values in principled fashion and to build consensus around them. Bickels thesis was that
the legislative and executive branches are not sufficiently insulated from the political process to
make difficult decisions grounded on principle, while asserting that:
Judgs have, or should have, the leisure, the training, and the insulation to follow
the ways of the scholar in pursuing the ends of government. This is crucial in
sorting out the enduring values of a society...Their insulation and the marvelous
mystery of time give courts the capacity to appeal to mens better natures, to call
forth their aspirations, which may have been forgotten in the moments hue and
cry.32
It may be ventured that Bickels appreciation is best considered within the context of current
constitutional theory given the confines of judicial review as it presented at the turn of the
Eighteenth Century. Christopher Wolfe has marked that:
Judicial review won out in early American history after genuine struggles, but
the form in which it won was critical to its success. In a different form, it is likely
that it would not have survived. The form it took was moderate judicial review,
and the major qualifying components it incorporated were inherent limits of
judicial power, legislative deference, and the political questions
doctrine...[judicial review] was not to be exercised in a doubtful case. In
cases in which they had doubts about the proper interpretation of the
Constitution, judges would defer to legislative opinions of constitutionality.33
Of the exercise of judicial review in the early republic, Powers and Rothman found that:
Even when it did act against legislatures, it could only do so to uphold a higher
constitutional principle. It never functioned as a council of revision an
institution that was contemplated but did not survive the deliberations of the


68
Constitutional Convention. A council of revision would have been a more purely
policy-making adjunct to the legislative branch, continually revising
legislation.34
Graglia cited the limited scope of review as articulated by Marshall, suggesting that:
Such a power of judicial review, limited to judicial enforcement of definite,
specific constitutional provisions, would constitute only a very limited intrusion
on democracy, the intrusion inherent in any constitutional provision that restrains
the policy choices of a current majority.35
This conceptualization of judicial review as a discrete and restricted institutional
intervention is borne out in the years subsequent to Marbury. Chief Justice John Marshall never
again invalidated federal legislation during his remaining thirty-two years on the bench, and the
Court did not so act until 1857, when in the Dred Scott36 decision it held that Congress was
without authority to regulate slavery/7 Undoubtedly, in theory and application judicial review has
undergone significant, if not tumultuous transformation. As Alexander Bickel noted, [¡judicial
review is a present instrument of government. It represents choices men have made and
ultimately we must justify it as choice in our own time. What are the elements of choice?38
Considering these elements is an exercise cognizant of the sentiments expressed by Chief Justice
Warren Burger that [sjome residual controversy remains as to the exercise of judicial review
today, but is largely as to scope, not basic power.39 In the realm of that residual controversy (a
characterization that is arguably too benign) Peretti has proposed that:
The self-perceived task for legal scholars is to resolve the two problems
associated with the Courts power of judicial review. The first is the legitimacy
problemthe problem of reconciling the Courts power with democratic values.
What possibly legitimate role can an undemocratic institution perform in a
democracy? What are the legitimate uses of judicial review and limits on its use?
The second problem is how to police or enforce those limits. How can we
effectively constrain judicial power and guard against judicial abuse?40
Doctrinal limits regarding judicial review are the essence of justiciability. Although in
principle it has many components, at its core it asks when a court can resolve a given dispute.
The complexity in responding to that query lies within the inherent judicial subjectivity at play in
the delineation of these doctrinal limitations. Bickel observed that, [tjhe case does not exist in


69
which the power of judicial review has been exercised without some misgiving being applicable
in some degree.41 Differences of degree reflect the nature of the particular principle being
utilized to gauge justiciability. To present as justiciable, all parties and the subject matter in a
particular action must be in compliance with the jurisdictional requirements for the court to
consider the legal issue. Prior to consideration it must be determined that the court have
jurisdiction over the parties and issue of the lawsuit.
Alexander Bickel coined the term passive virtues to describe the various techniques a
court may employ to avoid or delay deciding a legal controversy.42 Another commentator has
opined that the interpretation of justiciability affords federal judges opportunities for what
Justice Brandis called not doing, on the view that federal courts may exercise power only in
the last resort, and as a necessity.43 Comprising the doctrine of justiciability, issues of standing,
mootness, ripeness, and a political doctrine question, address the parties to a suit, the issue at
hand, and, from the outset, establish a courts orientation. It has been observed that the
calculation of the justiciability doctrine both reflects and shapes underlying assumptions about
the judicial function....44
The doctrine of standing focuses on who may seek remedy before the court for a
violation of the law; the plaintiffs must have been injured, impacted, or otherwise substantially
affected.45 Standing doctrine limits in federal courts compel plaintiffs to manifest a concrete
injury; a violation distinct from the public and thus precluding the utilization of Article III
courts46 to expound on generalized concepts.47 A connected line of legal reasoning addressing
when a court may entertain a dispute involves the principles of ripeness and mootness. Ripeness
considers whether a charge has yet to evolve into a justiciable threat subject to adjudication, while
mootness resides at the opposite end of the spectrum; characterizing issues before the court which
have already been resolved and cease to present as a current or live controversy.48 The
utilization of these precepts serves as a bulwark against an Article III courts speculative venture
into the realm of abstraction and hy pothetical discourse. Hershkoff has observed that no federal


70
judiciability doctrine is more entrenched than the ban on advisory opinions.49 Justice Thomas
Clark, in addressing the boundaries of judicial review, wrote that:
The case or controversy presented must be a genuine dispute [with real and
adverse litigants], raising a substantial question. The Court does not deal in
advisory opinions [or abstract or hypothetical questions], moot questions [already
resolved by changing circumstances], or political issues [more appropriately
resolved by the President or Congress, or which the Court is incapable of
resolving]. Traditionally it shies away from deciding constitutional questions; not
rendering such a decision unless it is absolutely necessary to the disposition of
the case. Even though a substantial constitutional issue is presented it will not be
passed upon if the case can be disposed of on a non-constitutional ground...An
attack on an act of Congress on constitutional grounds is by-passed in the event a
construction of the statute is fairly possible by which the constitutional question
may be avoided.50
Having established the general power of the judiciary via acquiescence with review, the
application of the doctrinal strands of justiciability demonstrates the legitimacy of the courts
exercise of jurisdiction.51 Yet within this judicial institution rests the fact that its boundaries are
not are not universally recognized or well defined.52 This is particularly evidenced in the
justiciable treatment of the political question and separation of powers doctrines; the scrutiny of
which is of direct consequence to a contextual appreciation of education finance litigation.
The political question doctrine is premised upon the understanding that certain issues
are nonjusticiable and inappropriate for judicial resolution; the courts determining that the issue
in question is more properly the province of the legislative and executive offices, these political
branches being more structurally and institutionally capable of addressing the controversy. The
Court has marked that:
The political question doctrine excludes from judicial review those controversies
which revolve around policy choices and value determinations constitutionally
committed for resolution to the halls of [the legislature] or the confines of the
Executive Branch. The Judiciary is particularly ill suited to make such decisions,
as courts are fundamentally underequipped to formulate national [or state]
policies or develop standards for matters not legal in nature.53
Chief Justice Moyer of the Ohio Supreme Court, in consideration of the doctrine, wrote:
The fact that [a lawsuit] implicates other branches of government, or has political
overtones, does not automatically invoke the political question doctrine. A
political question is one that requires policy choices and value judgments that


71
have been expressly delegated to, and are more appropriately made by, the
legislative branch of government.54
Chief Justice John Marshall first formally recognized the principle in Marbury when he held that
[questions in their nature political, or which are, by constitution and laws, submitted to the
executive can never be made in this court.55 The nonjusticiability of a political question is a
function of separation of powers;56 the legal principle equating separation of powers with a set of
institutional arrangements. Philip Kurland has described the arrangement, observing that:
Separation of powers...encompasses the notion that there are fundamental
differences in governmental functionsfrequently but not universally denoted as
legislative, executive, and judicialwhich must be maintained as separate and
distinct, each sovereign in its own area, none to operate in the realm assigned to
another.57
Determining and codifying where institutional spheres of responsibility and authority
begin and end remains a formidable, if not novel, challenge. In The Federalist #37, James
Madison proffered that:
Experience has instructed us that no skill in the science of government has yet
been able to discriminate and define with sufficient certainty, its three great
provincesthe legislative, executive, and judiciary; or even the privileges and
powers of the different legislative branches. Questions daily occur in the course
of practice which prove the obscurity which reigns in these subjects and which
puzzle the greatest adepts in political science.58
It has been suggested that to resort to the idea that there is a tripartite division of powers
legislative, executive and judicial, each self-defining, is to deal with phantasms.59 It is generally
conceded that the three branches were not to be completely separate; the framers of the
Constitution went to great lengths to demonstrate that the three branches should maintain a co
operative and interactive relationship in order to check institutional and administrative excess.60
James Madison asserted that the Constitution enjoins upon its branches separateness but
interdependence, autonomy but reciprocity.61 Chief Justice William Howard Taft held that [t]he
fact is that the judiciary, quite as much as Congress and the Executive, is dependent on the
cooperation of the other two, that government may go on.62 Maintaining that relationship while
simultaneously guarding autonomy complicates the application of the political question doctrine.


72
The Supreme Court sought to clarify the principle in Baker v. Carr.63 The plaintiffs in the
action challenged the constitutionality of the Tennessee Apportionment Act of 1901, charging
that it failed to provide for the reapportionment of members of the states General Assembly
among the states counties subsequent to each decennial census. In reversing a district court
ruling for the defendants, the opinion dismissed the argument that the case was nonjusticiable
given the political dynamic. In doing so the Court identified several circumstances which
evidenced the presence of a nonjusticiable political question. Justice Brennan, who penned the
majority opinion, stated:
It is apparent that several formulations which vary slightly according to the
setting in which the questions arise may describe a political question, although
each has one or more elements which identify it as essentially a function of the
separation of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or a lack of judicially discoverable
and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a courts undertaking independent resolution
without expressing lack of respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already made; or
the potentiality of embarrassment from multifarious pronouncements by various
departments on one question.64
Over twenty years after the Baker case, the Court, in Nixon v. United States,65 outlined a
procedure to follow in the determination if an issue was nonjusticiable. In consideration of a
constitutional text, the Supreme Court explained that:
[The Court] must, in the first instance, interpret the text in question and
determine whether and to what extent that issue is textually committed [in this
instance, to the legislative branch]...the concept of a textual commitment to a
coordinate political department is not completely separate from the concept of a
lack of judicially discoverable and manageable standards for resolving it; the lack
of judicially manageable standards may strengthen the conclusion that there is a
textually demonstrable commitment to a coordinate branch.66
Despite the pronouncements from the bench, it has been suggested that in several ways
the political question doctrine is the most confusing of the justiciability doctrines.67 Legal
scholars have questioned the very existence of the doctrine, citing a spurious rationale,


73
indeterminate scope and doubtful wisdom and validity in conception and application.68
Appraising the political question doctrine, Chemerinsky ventured that:
First, the confusion stems from the fact that the political question doctrine is a
misnomer; the federal courts deal with political issues all the time...Second, the
political question doctrine is particularly confusing because the Court has defined
it very differently over the course of American history. Finally...the political
question doctrine is confusing because of the Courts failure to articulate useful
criteria for deciding what subject matter presents a nonjusticiable political
question.69
He further argued that the standards enunciated in Baker were inapplicable given that
most...constitutional provisions are written in broad, open-textured language and certainly do
not include judicially discoverable and manageable standards.70 Redish advanced the thesis,
starkly concluding that the doctrine should play no role whatsoever in the exercise of the judicial
review power.71 Bickel has found the legal, intellectual and political premises at play in this
justiciable institution not quite as ephemeral as did the aforementioned critics. He opined that:
Such is the foundation, in both intellect and instinct, of the political question
doctrine: the Courts sense of lack of capacity, compounded in unequal parts of
(a) the strangeness of the issue and its intractability to principled resolution; (b)
the sheer momentousness of it, which tends to unbalance judicial judgment; (c)
the anxiety, not so much that the judicial judgment will be ignored, as that
perhaps it should but will not be; (d) finally (in a mature democracy), the inner
vulnerability, the self-doubt of an institution which is electorally irresponsible
and has no earth to draw strength from.72
The doctrinal limitations on judicial review, the foundations of which continue to
generate debate as the foregoing discussion evidenced, have evolved along with the posture of
American jurisprudence. Courts have played a significant role in the identification of difficult
social and political problems, and in some instances, dictated remedial initiatives. Powers and
Rothman noted that most observers agree that courts have greatly expanded their role in
American political system, that the executive and legislative branches have sometimes
grudgingly, sometimes enthusiastically acquiesced in this expansion, and that the public for the
most part has also accepted it.73 Taking stock of this incremental increase of intervention,
Wilson observed that:


74
The court is a vitally important forum in which individuals can assert
fundamental rights and seek appropriate remedies...The courts began the process
of school desegregation, put a stop to some bestial practices in prisons and
mental hospitals and have enabled thousands of people to get benefits to which
they were entitled or ended abuses they were suffering...But like all human
institutions, courts are not universal problem solvers competent to manage any
difficulty or resolve any dispute. There are certain things courts are good at and
some things they are not so good at.74
Distinguishing the role of American courts is a legal, social, and political exercise played
out far beyond law reviews and professional journals. The contemplation of judicial activism
and judicial restraint and the growth of judicial authority has been entertained by politicians,
social activists, and pundits from the popular media. As a part of the judicial conversation the
ongoing colloquy not only incorporates the doctrinal basis of justiciability; the issue is enveloped
in normative and philosophical principles, more often than not, presenting devoid of legal
grounding. The normative question of the proper role of courts in American government is
difficult to answer in practice.75 A degree of this difficulty is attributable to the inherent power of
the judiciary and the regard the courts are accorded by the citizenry The former dynamic reflects
the simple truth Bishop Hoady articulated before the King in a 1717 sermon, Whoever hath an
absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver to all
intents and purposes, and not the person who first wrote or spoke them.76 Of a more recent
vintage, a legal scholar opined that nearly all major changes in American society during the last
centurymany of which can be described as revolutionary and many of which are not favored by
a majority of American peoplehave been brought about by our judges.77 Levi remarked that
[a]n idea adopted by a court is in a superior position to influence conduct and opinion in the
community; judges, after all, are rulers. And the adoption of an idea by a court reflects the power
structure in a community.'8 Underscoring this institutional dominion is that courts have been
and remain far more esteemed than the democratic institutions of government...79
The ongoing consideration of judicial review has been operationalized by charting
judicial behavior within the coordinates of activism and restraint.80 However, as Fischer


75
observed, except perhaps among a relatively small group of scholars there is no agreement
whatsoever even on the meaning of judicial activism, and its counterpart, judicial restraint... all
too often the matter of activism or restraint resolves itself into whose ox is being gored?81
Two perspectives provide a framework upon which to consider the complexity of the tension
between the two legal and philosophical polarities; the first of which Bosworth provided when he
wrote:
Judicial activists see their function as that of promoting the common good
(however defined) through law. Often they justify this goal-oriented behavior by
stressing the impossibility of interpreting the law in any other way than a modem
observer would. Judicial activists do not necessarily confine their activism to
the discovery of constitutional wrongs...these judges are more likely to devise
expansive remedies for these violations. The rise of public law litigation...was
spurred by activist judges using their equitable remedy powers to address
significant social problems thought to be solely under legislative and executive
control...judicial activism of interpretation and judicial activism of remedy are
part and parcel of the same view of the judicial role.82
Encapsulating judicial restraint, Lamb observed that:
Judicial restraint embodies at least six fundamental notions: 1. that the justices
abide by the intent of the framers of the Constitution and statutes, and that the
justices do not read their own personal preferences into the law; 2. that the
justices pay deference to the legislative and executive branches of the federal and
state governments by seldom overruling their policies and then strictly on legal
grounds; 3. that the justices rely upon statutory rather than constitutional
construction whenever possible; 4. that the justices accept for decision only cases
and controversies where the litigants have standing to sue in lives issues; and 5.
that the justices neither issue advisory opinions, nor 6. answer political
questions.
Beyond these baselines, it has been suggested that as one moves through the literature on
judicial activism and restraint it becomes obvious that everybody has an ax to grind and all too
often the discussion is more polemical than analytical.84
Considering the constrained nature of judicial review as originally conceived and
administered, the potential power of its utilization was not ascertained until the early Twentieth
Century. Christopher Wolfe has posited that from its generation through the Civil War, courts
exercised authority within the confines of judicial review as inherited from the framers.
Following the Civil War, the courts through the adoption of due process jurisprudence became


76
more active in the application of natural law principles and the protection of property rights; often
striking down state and federal statutes attempting to check economic activity. In what Wolfe has
described as a constitutional revolution, during the New Deal the courts resumed a more
restrained posture, exhibiting deference to legislatively engendered social and economic reforms.
In yet another evolution, the Warren and Burger Courts embraced an egalitarian appreciation of
jurisprudence; attempting to spur, if not oversee, the codification of civil rights and liberties.85
Jacobson has suggested that:
Important changes in legal and political culture were preconditions for the rise of
an activist judiciary. They provided the key ideas and innovations establishing
and legitimizing modem judicial power. The progressive Wilsonian view of
regarding the Constitution not as a historically bounded document but rather as
something like an organic manifestation of the general will facilitated acceptance
of greater judicial activism even with respect to constitutional questions.... 6
Arguing that the courts have become so systematically involved with social, economic, and
political questions central to the nations order and well-being over the past fifty years to such an
extent as to suggest a potential imbalance in [the] national institutions,87 Powers and Rothman
paused to consider the genesis of this legal dynamic. They posited that much of the growth of
judicial power is attributable to the historical transformation of America into a modem welfare
state, and that a strategic advantage accrues to modern courts because they function in a heavily
bureaucratic policy making environment, facilitating an incremental aggregation of
authority.88 It has also been ventured that:
The organizational imperatives of a reformed American political system dictated
that the courts step in...Issues came before the court as a matter of course,
because other political institutions, either through action or inaction, had failed to
resolve or had even exacerbated serious social and political problems. The courts
were simply applying constitutional provisions to new circumstances...There is
no doubt that judicial activism has paralleled and is inextricably connected with
the growth of American state power in the twentieth century. The state is more
intimately intertwined in the daily lives of American citizens than at any other
point in history, and the courts have played an active role in this.89
Of particular interest for scholars have been the implications for judicial review posed by
the Supreme Courts ruling in Brown v. Board of Education,90 Graglia believed that the ruling


77
effectively removed significant restraints on judges and diminished the recognition of the need
for judicial self-restraint. He noted that:
If the Court could bring about this revolution [through Brown], it came to be
thought by judges and others, what revolutions could it not bring about? What
need was there for proponents of basic social changes to undergo the delays and
uncertainties of the democratic process? Judges came to be seen as forces for
moral enlightenment and engines for progress, whose public policy choices were
obviously much to be preferred to those of mere politicians beholden to the
multitude of private interests.91
Bickel wrote, in reference to the expansion of jurisdiction, that:
Brown v. Board of Education was the beginning. Subsequently, the Court
declared Bible reading and all other religious exercises in public school
unconstitutional; it ordered the reapportionment of the national House of
Representatives, of both houses of state legislatures, and of local government
bodies on a one-man, one-vote basis; it reformed numerous aspects of state and
federal criminal procedures, significantly enhancing the rights of the
accused...and it laid down a whole set of new rules governing...the conduct of
police throughout the country toward persons arrested on suspicion of crime...in
addition, the Court limited the power of state and federal governments to forbid
the use of birth-control devices, to restrict travel, to expatriate naturalized or
native-born citizens, to deny employment to persons who associations are
deemed subversive and to apply the laws of libel.92
The intervention of courts into the formulation and implementation of public policy,
characterized by the interpretation and expansion of constitutional texts, an authority seldom
exercised prior to the mid-Twentieth Century, has significantly impacted legislation and
governance at the federal, state, and local levels.93 Commentators have noted the aspect of
modem judicial review that sets its apart from earlier jurisprudence lies in the discovery and
application of appropriate remedies.94 Fuller maintained that this increased role of the courts
represented a departure from the traditional view of the courts as passive dispensers of law. Under
the more traditional model, judges were neutral arbiters in a litigant driven adversary system.95
Bosworth noted that newer theories of adjudication dismissed the premise that courts were
incapable of entertaining social and political controversies and effecting change; an expansion of
the judicial role exhibiting a theme of basic fairness.96


78
If a consensus can be detected in considerations of judicial review vis--vis activism and
restraint it is the acknowledgement of the significantly higher profile courts have assumed in the
American polity. Graglia observed that judicial review has meant very different things at
different times, and it is only in very recent times that it has meant anything like the degree of
power our judges now possess...;97 while Irons reasoned that judges make law rather than
discover it can no longer be disputed. The question is not whether judges make law, but in
whose interests, for what purposes, and in pursuit of what policies?98 And Gunther starkly
asserted that there has been a sea change in the political philosophy with regard to judicial
governance. In a very real sense we are today watched over by the bevy of Platonic
guardians....99 Comity beyond this recognition of the present judicial posture is conspicuously
absent as the issue is exhaustively interpreted. It has been marked that the endless debate over
the propriety of judicial review encapsulates the tension between judicial authority to interpret
law and the majoritarian will as embodied in legislative acts, [judges] must reconcile the principle
of the rule of law with that of popular sovereignty....100
Basic concepts of the proper role of the judiciary in American democracy underlie the
construction of the dimensions of judicial activism and restraint. The competency of courts to
prescribe remedial measures usurping the legislative and executive prerogatives, and the
legitimacy or illegitimacy of this judicial intervention, frame the appreciation of judicial review
within commonly articulated perceptions.101 Asserting that legitimacy and capacity are related,
Horowitz remarked that:
A court wholly without legitimacy may soon suffer from diminished capacity.
The cases for and against judicial review have always rested in part on
assessments of judicial capacity; on the one hand, the presumably superior ability
of courts to build up a body of coherent and intelligible constitutional
principles, on the other, the presumably inferior ability of courts to make the
political judgments on which exercises of the power of judicial review often
turn...traditional judicial review meant forbidding action, saying no to the
other branches...now the judicial function often means requiring action, and
there is a difference between foreclosing an alternative and choosing, between
constraining and commanding.102


79
In consideration of the diversiform nature of these judicial concepts, Sowell wrote that:
Judicial activism and judicial restraint raise logically obvious but often
ignored questions: Activism toward whafl Restraint toward whatl...ti\Q current
popular majority, the legislature representing the current popular majority,
statutes passed by present or past legislatures, the acts of current or past
executive or administrative agencies, the meaning of the words in the
constitution, the principles or purposes of those who wrote the constitution, or
legal precedents established by previous judicial interpretation?103
A fundamental questionAre judges the proper instruments of change counter to the
will of the political branches of the government, and accordingly, the desire of the people?is
by necessity couched in a consideration of the ramifications of an activist judiciary presents for a
representative democracy. Chief Justice Rehnquist has commented that there is no justification
for a third legislative branch, if so...it should at least ought to be elected and responsible to
constituencies... if there is going to beacouncil ofrevision, it ought to have at least some
connection with popular feeling.104 Stressing a democratic imperative to assign the construction
of law and the implementation of policy to elected representatives, Rehnquist stated that:
Representative government is predicated upon the idea that one who feels deeply
upon a question as a matter of conscience will seek out others of like view or will
attempt to persuade others who do not initially share that view. When adherents
to the belief become sufficiently numerous, he will have the necessary
armaments required in a democratic society to press his views, upon the elected
representatives.105
Abraham Lincoln expressed a similar sentiment, referencing the frustration of the public to the
Dred Scott decision; addressing the matter the President asserted that:
The candid citizen must confess that if the policy of the government, upon vital
questions affecting the whole people, is to be irrevocably fixed by decisions of
the Supreme Court, the instant they are made, in the ordinary litigation between
parties in personal actions, the people will have ceased to be their own rulers,
having to that extent practically resigned their government into the hands of that
eminent tribunal. 106
Substantiating the premise that the ultimate issue between judicial activism and restraint
is the institutional locus of discretion...the question as to who is to decide;107 the
countermajoritarian concerns articulated by Chief Justice Rehnquist and President Lincoln have
drawn advocates and detractors of an aggressive judicial profile into an intense and ongoing


80
debate. Boot has argued that America used to be a democracy, a government by, and for, the
people. Now it has all the earmarks of a juristocracy....,,m Sunstein, endorsing deliberative
democracy, has maintained that the ultimate constitutional protection resides with the citizenry;
cautioning that the excessive utilization of judicial avenues serves to diminish the responsibility
of elected officials and thwarting other nonjudicial remedies.109 Bork has charged that courts
provide the necessary means to outflank majorities and nullify their votes,110 thus advancing
ends that democratic branches of government would never sanction.111 The former Court
nominee identified the American Disease; the seizure by judges of authority properly
belonging to the people and their elected representatives,112 a malady presenting when judges
have been accorded, or appropriated, the power to override the popular will. Nisbet has cited the
creation of a legal paradigm which sees in the [courts] precisely what Rousseau saw in his
archetypical legislators and Bentham in his omnipotent magistrate: sovereign forces for
permanent revolution.113 Rosenberg distinguished a constrained court view that maintains
that courts will generally not be effective producers of significant social reform for three reasons;
the limited nature of constitutional rights, the lack of judicial independence, and the judiciarys
inability to develop appropriate policies and its lack of power to implement.114 Stressing the
imperative within a democracy to assign policy construction and oversight to those branches
subject to popular checks as opposed to a generally unfettered judiciary, Justice Harlan Stone
opined that:
While unconstitutional exercise of power by the executive and legislative
branches of Government is subject to judicial restraint, the only check on our
own exercise of power is our own sense of self-restraint...For the removal of
unwise laws from the statute books lies not to the courts but to the ballot and to
the processes of democratic government.115
Justice Robert Jackson, while marking that the judiciary is an institution of distinctive
characteristics which were intended to give it independence and detachment, but which tend to
make it antidemocratic, remarked that there is no evading the basic inconsistency between
popular government and judicial supremacy.116 Writing in 1941, the Justice opined that, this is


81
government by lawsuit. These constitutional lawsuits are the stuff of power politics in
America.117 Bickel questioned which values, among adequately neutral and general ones,
qualify as sufficiently important or fundamental...to be vindicated by the [court] against other
values affirmed by legislative acts?118 Of the relationship between the political branches and the
judiciary, he cautioned that the legitimacy of the courts is guarded by keeping the judicial
function distinct from the legislative and thus capable of being justified.119 Thayer believed that:
[Judicial review], even when unavoidable, is always attended with a serious evil,
namely, that the correction of legislative mistakes comes from the outside, and
the people thus lose the political experience, and the moral education and
stimulus that comes from fighting the question out in the ordinary way, and
correcting their own errors. The tendency of a common and easy resort to this
great function, now lamentably too common, is to dwarf the political capacity of
the people, and to deaden its sense of moral responsibility.120
Colwell spoke to another dimension of the legislative process, considering that:
[A] problem that emerges from judicial review is excessive limitation of
legislative alternatives...if states legislative bodies perceive the judiciary as
having limited or mandated any viable remedies to correct an unconstitutional
[statute], legislatures may decide not to abide by the courts ruling or else not
cooperate and hinder any attempt at resolution.121
Power and Rothman suggested that intervention whether it brings about desirable
institutional reforms or not, comes at a cost.. .if political compromise is less likely to come from a
court battle than from [the legislative process] then at least some of the political polarization
evident in the political system can be attributed to court decisions that settle pubic policy
disputes....122 Illuminating the rigidity engendered through a dependence upon a judicial
resolution, given the treatment accorded a specific issue divorced from the total polity, Justice
Oliver Wendell Holmes wrote, all rights tend to declare themselves absolute to their logical
extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other
than those on which the particular right is founded, and which become strong enough to hold their
own when a certain point is reached.123
McCleasky ventured that arguments for judicial activism are premised upon a distrust of
democracy, a belief that someone somewhere must over see and protect the people from


82
themselves....124 Reflecting that sentiment, Graglia proffered that the strength of judicial
review...derives in part from the undying but forlorn human hope of somehow relieving
ourselves of the difficulties and uncertainties of decision making on basic questions of public
policy by finding persons of exceptional wisdom and goodness to whom the responsibility can be
entrusted.125 It has been suggested that only a small degree of distrust in democracy is required
to favor a system of judicial review in which judges are authorized to invalidate the acts of
elected representatives....126
J. Clifford Wallace proposed that the gradations in the application of judicial review
evidence conflicting conceptualizations of democracy. The justice from the United States Court
of Appeals, Ninth Circuit, offered that if democracy were considered an intrinsic, fundamental
value, then the area of legislative discretion is presumably larger than would be if democracy
were a minor or derivative value.127 If democracy were afforded treatment as an instrumental
value, it is valuable only to the extent that it produces substantially better decisions than would
any other decision making procedure.li8 Justice Wallace wrote that:
A noninstrumental theory of democracy... places value in the democratic process
even when decisions fall short of the best possibleindeed even when the
majority makes a decision that is stupid, irrational or completely wrong
headed...[while] constitutional limits remain...it is better that the majority make
a wrong decision than that a judge make the decision, even if the judge would
make a socially more beneficial decision...[in essence] the process by which the
decision is made may have greater value than the decision itself.129
Making the assumption that no judge believes that he or she can correct any enactment
considered unwise absent a constitutional or statutory rationale, Wallace maintained that if one
believes in the instrumental theory of democracy... one is likely to find the required constitutional
argument or statutory construction when faced with what one perceives to be a bad statute,130
and endeavors to override legislative intent.
Advocates of restraint have cited review as culpable in the facilitation of efforts of
organized interest groups to circumvent the legislative process, and hence the necessity of taking
their case to the public at large; rather presenting an agenda to a judiciary which may be more


83
predisposed to provide a forum and sanction. Bosworth observed that the use of litigation by
organized interest groups battling for social change is a relatively recent feature in American
history. In earlier times...going to court was the preferred option for interests that wanted to slow
or halt social reform....131 Melnick has concluded that public interest groups have played a
major role in the transformation of courts into policy making institutions. He found that these
groups all saw the advantage of presenting their position in terms of rights and of using litigation
as a central element of their political strategy.132 Melnick cited groups such as the National
Association for the Advancement of Colored People and the American Civil Liberties Union as
sophisticated players with long-range litigational strategies, and, what is perhaps most troubling
to restraintists, through the initiation of litigation they have an opportunity to engage in forum
shopping to argue before the most sympathetic judges.133 Butler succinctly observed that all it
takes is one person with a good argument that can convince a judge and thats that,134 while
Graglia opined that it is probably only a small exaggeration to say there is no policy so
inconsistent with the possibility of a harmonious society that some organization has not urged or
considered urging its adoption by some judge.135
Legal theorists supporting judicial review acknowledge a distrust of democracy and the
appreciation of the judiciary as a check on the conduct of the other branches. They suggest that
judicial intervention is not antidemocratic; rather it is a constitutional mechanism necessitated to
counter those aspects of the legislative majority seen to suppress democratic values.136
Countering the countermajoritarian, or anti-democratic, fears Miller wrote that a tension has
always existed between the ideal of popular sovereignty and the institution of judicial review.
But if one asks how government can be obliged to control itself, the answer must not come from a
sense...of self-restraint by the avowedly political branches... but by some institution external to
them.137 He argues that critics of judicial activism assume without evidence that the political
process is up to the needs of America. A blind adherence to the political process ignores the fact
that the system of pluralism has either broken down or is rapidly breaking down.. .because it


84
provides no spokesman for the public (or national) interest 138 Of the supposition that the
public interest is produced by an invisible hand, Miller contends that political pluralism as a
self-correcting system is as mythical as the market of the classical economist.139 Asserting that
the political process rewards only the powerful, the professor believes that because judges have
possessed a unique insight into a system of absolute values, segments of American society
unable to benefit from the pluralistic political process have found a champion in the
judiciary.140 As for concerns that the judicial system through an aggressive application of review
negates the popular will, Miller confidently states that the courts cannot long be out of step with
the dominant political forces of the nation. ..[decisions] tend to reflect the actual political power
at any time.141 Tushnet articulated a similar posture; while observing that judicial review had not
operated historically to the advantage of liberal or conservative political interests, he wrote:
Looking a judicial review over the course of U.S. history, we can see that courts
have regularly been more or less in line with what the dominant national political
coalition wants. ..we can say that judicial review amounts to noise around zero. It
offers essentially random changes, sometimes good and sometimes bad, to what
the political system produces.14'
While McCloskey may hold that judicial activism is a slippery term,143 others in
addition to Miller have found it a concrete remedy to a flawed political system. Downing marked
that the fact the courts are the principal forums for resolving so many political issues is
indicative of serious default on the part of...legislative and executive institutions.144 Seeing little
prospect that the political branches can soon be reconfigured to adequately address societys
deepest problems, he contended that while it is very doubtful that our courts can save the
country, only they may be able to buy the time necessary for revitalization of our other
institutions.145 Powers and Rothman, decidedly not proponents of judicial activism admitted that
legislative institutions have often failed to live up to the responsibilities of representative
governance, and the courts are an important check against unbridled executive discretion as well
as legislative aggrandizement.146 Cohen remarked that it is evident that even if the judiciarys


85
actions might be viewed as a usurpation of the legislative prerogative, this intrusion may be
justified as being clearly justified in the face of legislative inaction....147
The argument has been proffered that while the democratic process rather than judicial
review must be relied upon to justify policymaking, it is as a consequence the specific province
and duty of judges to protect the democratic process itself.148 This view can be traced to Justice
Harlan Stones famous footnote in United States v. Carolene Products;149 citing the limits to the
presumption of constitutionality afforded legislative initiatives which appeared to
seriously...curtail the operation of those political process ordinarily relied upon to protect
minorities, thus requiring a more searching judicial inquiry.150 Developing a thesis that
judicial review serves to protect the republic from threats to democracy engendered by
overbearing majorities, Choper argues that if judicial review were non existent for frustrated
minorities, the rights already lost in the legislative halls, would have only one remaining
battlefieldthe streets...the alternatives to judicial review...are either disobedience or
discontented acceptance.151 Ward has offered that while public discourse within the context of
legislative resolution of policy issues is ideal, political power is not equally distributed to all
participants in the political process.152 Justice William Brennan contended that courts were in a
unique position from which to address this flaw, opining that insulated as they are from the
political pressures, and charged with the duty of enforcing the constitution, courts are in the
strongest position to insist that unconstitutional conditions be remedied, even at significant
cost.153
Taking issue with call for dependence upon the political system and the necessity of
heeding the popular will, Perretti stressed that:
The American political system is not in any way directed to the goal of majority
rule, it is in virtually all respects an antimajoritarian system, including its
rejection of legislative supremacy... [it] consists of numerous diverse political
institutions, none of which is hierarchically superior to another. This provides
groups, especially minorities, with a variety of arenas in which to advance their
interests and contest policies with which they disagree. In this pluralist system,
judicial review is neither deviant nor illegitimate rather, it is a quite normal


86
expression of the pluralist principles of redundancy and diversity in political
154
representation.
Perretti maintained that the ordinary democratic means for resolving political issues...are on
occasion inappropriate...issues [such as] minority rights or fundamental constitutional rights,
such as freedom of speech, and the right to vote, are unlikely to receive fair treatment in the
political arena.155 Wallace Justice, while serving on the U.S. District Court, Eastern District of
Texas, found that the source of our enduring and venerable ideals to be more than the vox
populi,156 while Lippmann, considering the rule of the majority, warned that:
[It] may easily become an absurd tyranny if we regard it worshipfully, as though
it were more than a political device. We have lost all sense of its true meaning
when we imagine that the opinion of fifty-one percent is in some high fashion the
true opinion of the whole hundred percent, or indulge in the sophistry that the
rule of the majority is based upon the ultimate equality of man.157
Beth provided a tempered justification of review within a democracy, commenting:
Lest he be misunderstood, it should be added that the present writer has no
illusions concerning the long range effectiveness of judicial protection for civil
liberties; he subscribes rather to the now commonly held idea of the [judiciary]
as, at best, a delaying agency. If popular enthusiasm for repression is short lived,
however, judicial decisions may be of extreme importance in forcing that second
thought, which may eliminate the very desire to repress.158
Concisely appraising the issue, Wallace remarked that:
The partisans of both judicial activism and judicial restraint agree that
government cannot act beyond the outer limits established by constitutional
boundaries without becoming subject to judicial intervention. The controversial
question is just where those limits are and thus how extensive the territory is
within which government can function free of judicial intervention.159
The propriety of judicial review superimposes a frame of reference upon considerations
of constitutional interpretation and conceptions of the role of judges; deliberations which are
centered on contesting legal theories. The intensity of these discussions has paralleled the
emergence of an activist judiciary. Gavison observed that the relationships between law,
adjudication, theories of law and theories of adjudication, be they descriptive (what in fact do
judges do?) or normative (what should judges do?) have been the subject of serious debate in
contemporary legal philosophy for some decades now.160 Distinguishing different modes of


87
decisionmaking; their methods, sources and scope, and the philosophical groundings they exhibit
is a subjective exercise; the parameters they evidence often being blurred and dismissing any
notion that there is anything essential or inherent about these alternatives.161 One of the
strongest advocates of a restrained judiciary, Justice Felix Frankfurter, once remarked,
constitutional law is not at all a science, but applied politics.162 Constitutional theory, in a
general sense, is designed to chart this application within the context of constitutional
interpretation. The controversies are centered upon the extent to which jurists decide issues before
the court on grounds intrinsic or extrinsic to the text, or in the extreme, counter to the document.
Operating on the premise that judicial review is fundamentally at odds with democratic
values, what Perretti has coined conventional constitutional theorists maintain that its
introduction requires a special or exceptional source of legitimacy.163 A significant
characteristic of this approach is the embrace of legal autonomy-a conviction that the
constitutional text can be deciphered in an objective and detached manner; an exercise free of a
judges personal values, policy preferences, or biases. Beneath this overarching presumption,
reside interpretive and non-interpretive orientations.164
An interpretive approach to constitutional law and adjudication may also be referenced as
original intent, strict construction, or cognitive meaning. Two points distinguish
interpretivism; the insistence that courts are only to act upon principles specifically articulated
within the text, and that it presents as the only method of interpretation which can justify the
introduction of review while simultaneously serving as a check on judicial power.165 According to
Ely, this approach requires that:
Judges deciding constitutional issues should confine themselves to enforcing
norms that are stated or clearly implicit in the written constitution...[thus]
interpretivism fits our ordinary notion of how law works, if your job is to enforce
the constitution, the constitution is what you should be enforcing, not whatever
may happen to strike you as a good idea at the time.166
J. Clifford Wallace, acknowledging the limitations of the approach, did stress that:


88
Interpretivism will not always provide easy answers to difficult constitutional
questions. The judicial role will always involve the exercise of discretion. The
strength of interpretivism is that it channels and constrains this discretion in a
manner consistent with the constitution. While it does not necessarily insure a
correct result, it does exclude from consideration entire ranges of improper
judicial responses...[and] even if judges might reach more and just and
enlightened decisions...a benevolent judicial tyranny is nonetheless a tyranny.16'
Sir William Blackstone offered a series of steps toward carrying forward those
intentions at the time law was made.168 The words of the text were to be understood in their
usual and most known signification... [according to] their general and popular use.'69 If the
words happen to still be dubious the jurist was then permitted to establish their meaning from
context provided that it did not supersede the cognitive meaning.170 Lastly, if the words still had
no significance or a very absurd signification, Blackstone counseled that only then was a jurist
justified in considering the reason and spirits of the text or the cause which moved the
legislator to enact it.1 1 It has been suggested that these steps defined the role of judges,
prescribing that they were solely tasked with the carrying out instructions, with a meaning
already given whether given clearly or in a manner requiring further steps of discovery.172 The
construction of new meanings, be they based upon later insights, judicial conscience, or the
philosophical values presumed to motivate the original law, was not a legitimate component of
adjudication.173
Robert Bork emerged as a leading contemporary proponent of interpretivism. He called
upon jurists to restrict their scrutiny of constitutional texts to the original understanding; an
interpretative process that does not engage in a speculative consideration of the subjective
intentions of the authors, rather utilizes the words as they would have been understood at that
time.1'4 Bork maintained that historical constitutions were understood by those who enacted
them to have a meaning of their own and it is that meaning that judges ought to utter.177 Of
jurists who stray beyond these confines, it was marked that:
Activist judges are those who decide cases in ways that have no plausible
connection to the law they purport to be applying, or who stretch or even
contradict the meaning of that law. They arrive at results by announcing


89
principles that were never contemplated by those who wrote and voted for the
law...they can be properly active in the enforcement of liberties confided to their
care, but not activist in creating new and unwarranted rights and liberties in
defiance of democratic authority. Self denial is unattractive, and judges have
manifold opportunities to surrender to the temptation to enact their own beliefs.
Such performances do not accord with any known version of the rule of law.176
While acknowledging that two judges equally devoted to the original purpose may disagree
about the reach or application of the principle at stake and so arrive at different results,177 Bork
asserted that if the constitutional text does not clearly and persuasively justify intervention,
judges must stand aside and let current democratic majorities rule...where the law stops, the
judge must stop.178 Graglia argued that to rely upon anything other than original intent was to
reduce constitutions to irrelevancy; serving only to provide the peculiar phrases...used by judges
to state their ultimate conclusions when they disagree with the public policy choices made by
Many of the most forceful and substantive articulations of an interpretivist philosophy
have been offered by Federal and Supreme Court Justices. Oliver Wendell Holmes long
maintained that the cognitive meaning or original intent of the laws provided judicial instruction;
a guide that took precedent over psychological motivations or philosophical dispositions. The
jurist asserted that when the text does not disclose one meaning conclusively according to the
rules of language,180 the interpretive process did not countenance attempting to discern what an
individual had written or spoken by getting into his mind; if not clear, the question was not
what this man meant, but what those words would mean in the mouth of a normal speaker of
English, using them in the circumstances in which they were used.18' In Lochner v. New York,1*2
Justice Holmes criticized the majority for becoming a superlegislature enforcing a laissez-faire
economic philosophy. In dissent, Holmes opined that:
[A] constitution is not intended to embody a particular economic theory, whether
of paternalism and the organic relation of the citizen to the state or of laissez-
faire. It is made for people of fundamentally differing views, and the accident of
our finding certain opinions natural and familiar or novel and even shocking
ought not to conclude our judgment upon the question whether statutes
embodying them conflict with the Constitution of the United States.183


90
In a decision nearly forty years subsequent, Justice Felix Frankfurter wrote that:
As a member of this Court I am not justified in writing my private notions of
policy into the Constitution, no matter how deeply I may cherish them or how
mischievous I may deem their disregard. The duty of a judge who must decide
which of two claims before the Court shall prevail...is not that of an ordinary
person. It can never be emphasized too much that one's own opinion about the
wisdom or evil of a law should be excluded altogether when one is doing ones
duty on the bench. The only opinion of our own...that is material...is our opinion
whether legislators could in reason have enacted such a law.184
Justice Hugo Black, dissenting in Griswold v. Connecticut,185 cautioned that, unbounded judicial
[creativity] would make of this Courts members a day-to-day constitutional convention.''86 Of
Blacks reasoning, OBrien has observed that the Justice had argued the threshold of permissible
judicial creativity is crossed...when the Court discovers and enforces values that are neither
specifically enumerated in, nor fairly traceable to, some provision in the text of the
Constitution.187 Justice Black exhibited a textual appreciation of an interpretive approach, a line
of legal reasoning which finds certainty in the wording of the text and dismisses the need to
further consider the history of a provisions enactment.188 In his famed Commentaries on the
Constitution of the United States.189 first published in 1833, Joseph Story who was both a Justice
of the Supreme Court and a Harvard professor grounded the interpretation of constitutional texts
on his understanding that, [u]pon subjects of government it has always appeared to me, that
metaphysical refinements are out of place. A constitution of government is addressed to the
common sense of the people; and never was designed for trials of logical skill, or visionary
speculation.190
The Supreme Court, in 1936, held in United States v Butler,191 that:
When an act of Congress is appropriately challenged in the courts as not
conforming to the constitutional mandate, the judicial branch of the Government
has only one dutyto lay the article of the Constitution which is invoked beside
the statute which is challenged and to decide whether the latter squares with the
former. All the court does, or can do, is to announce its considered judgment
upon the question.192


91
The decision, which indicated an interpret vist tack in addition to demonstrating disinclination to
encroach on legislative and executive policy prerogatives,193 addressed concerns interpretivists
have maintained as to the consequences of judges restricting the democratic process without a
clearly articulated constitutional authorization. The investment into constitutions and statutes of
new and unintended meanings, strict constructionists contend, threaten the legitimacy of the
courts and the balance maintained amongst the three branches of government.194 Chief Justice
Rehnquist warned that:
Once we have abandoned the idea that the authority of the courts to declare laws
unconstitutional is somehow tied to the language of the Constitution that the
people have adopted, a judiciary exercising power of judicial review appears in a
quite different light. Judges then are no longer the keepers of the covenant;
instead they are a small group of fortunately situated people with a roving
commission to second guess Congress, state legislatures, and state and federal
administrative officers concerning what is best for the country.195
J. Clifford Wallace has argued that a concern for legal predictability, facilitated by a strict
constructivist consideration of the constitutional text fosters restraint and speaks to judicial
economy. He marks that courts are cost-effective, for the most part in settling dispute. They
become cost-ineffective when asked to re-engineer social structures and reorganize social
priorities.196 Further, it is consistent with, and complementary to the balance of power among the
three branches; accomplishing this by minimizing inter-branch interference by the judiciary and
exhibiting a deferential posture. To act otherwise creates unpredictability on the part of the
judiciary that makes courts and their rulings a moving target, to the consternation of the other
independent branches.19' Making particular note of the latter point, Wallace believes that restraint
in application and interpretation also serves to protect the independence of the judiciary, opining
that when courts become engaged in social legislation, almost inevitably voters, legislators and
other elected officials will conclude that the activities of judges should be closely monitored.198
By avoiding the temptation to spin twentieth century sociology out of eighteenth or nineteenth
century language, judges will correctly present as neutral expounders of justice under the law as
opposed to moral reformers and social crusaders.199 Wallace does pause to acknowledge that an


92
activist court and a broad interpretive style is not the province of any political orientation, noting
that many who deplored the activism of economic substantive due process earlier in [the
twentieth century] praised the activism of the Warren Court.200 Observing that virtue seemed to
be dictated by result; in application, anything beyond discerning the cognitive meaning of
constitutions was merely a rationalization of a willingness to use whatever means are expedient
to reach ones preferred results.201 Diver remarked that:
Arguably, judicial protection...aided people the courts attempted to protect [and]
curtailed most of the worst of institutional abuses. Such success however might
have come at the price of judicial legitimacy...courts derive a great deal of their
power from the social perception that judges are neutrally and fairly applying the
law, not imposing their own personal political opinions...as public law moved
judges from a role as passive, impartial arbiters toward the position of
powerbroker it threatened court legitimacy.202
Horowitz asserted that finding legal justification beyond the text inevitably leads the courts into
ventures of institutional reform litigation, an exercise they are inadequately structured to address.
Maintaining that judges are trained to be generalists, he argued that in attempting to ascertain
social facts in lieu of legal facts, jurists involve themselves in interpretations of the social
sciences and produce decisions with a limited understanding of the possible consequences.203
Encroaching on the domain of the legislative and executive branches, institutionally designed to
deal with these concerns only served to threaten judicial legitimacy.204 Commentators have
suggested that this trend has forced courts to make increasingly political judgments while
attempting to construct remedies, and gauging the extent of same has become a complex and
contingent exercise in prediction.205 Considering intervention and possible consequences, Posner
remarked that, those judges who believe...in judicial restraint... will consider ignorance of the
consequences of a challenged governmental policy that is not completely outrageous as a
compelling reason for staying the judicial hand in the absence of sure guidance from the
constitutional text...[while] activists will plow ahead.i06 Further, he observed that for the strict
constructionist, it shouldnt be enough that the litigant claiming a constitutional right has the
better of the arguments... the alleged violation of the constitution has to be certain.207


9.3
The elusive nature of that certainty underscores the rationale for a non-interpretive
appreciation of constitutional considerations. Within the neutral construction of constitutional
theory' this school, in concurrence with interpretivists, holds that the jurist act in an objective
manner, eschewing any reference to personal preference, philosophy or bias when interpreting the
constitutional text. As noted, those of the interpretivist school contend that these references are
precisely what non-interprevisits introduce into the judicial exercise. Peretti has observed that
the central issue of contention among neutralist scholars is not whether judges should be
principled, but what is the proper source of constitutional values which the Court may
legitimately advance in opposition to majority desires.208 The differences between the two
schools again returns to defining those boundaries between the apolitical judicial sphere, where
the people can and should be told, No, and the democratic sphere, where the people should have
free rein.209
Non-interpretivists stress the need to look beyond the plain text, calling upon courts to
advance societys fundamental values, even if not clearly articulated in the document. In essence,
courts were tasked with identifying core constitutional values in the abstract, then applying in
concrete decisions. Despite the operative premise that these fundamental rights exist independent
of social consensus or a contemporary popular appreciation, the question remains as to how to
instruct courts how to distinguish and apply them. 210 Tribe had stressed rights of privacy and
personhood,211 while Wellington has advocated a reliance upon a conventional morality.212
Richards has spoken of human rights with a particular emphasis upon rational liberty; a
denial of which is evidenced when the community has unnecessarily infringed on conduct
generally considered to be essential to the rational self-governance of some persons.213 In light
of this marker, courts should be cognizant of those rights integral to the rational self guidance of
most persons,.../.e., rights addressing education, voting, free speech, and treatment by the
criminal justice system.214 Karl has proffered the principle of equal citizenship which calls for


94
the recognition that each individual is presumptively entitled to be treated by the organized
society as a respected, responsible, and participating member.215
The literature presents with a greater degree of substantial accord as to the rationale of a
non-interpretive constitutional theory. Considering the reasons advanced for going beyond
original intent Sowell cited that:
(1) there has been significant social changes since enactment, [and] (2) there are
moral questions involved, only imperfectly addressed or cryptically suggested by
the explicit language of the enactment and, more generally, the enactment...is
not to be read as a set of rules but as an expression of values, to be given specific
content in the particular case by the jurist.216
Shea has also noted objections to the interpretivist school, writing that:
The principal dissatisfaction with original intent theory is twofold. First, although
courts ordinarily purport to follow the original intent of the constitutional
language, it is widely believed that decisions are really made on the basis of the
judges view of social policy as applied to the case before them. Thus, it would
be more honest and less circumlocutory in a particular case to advance simply the
social concerns involved as a basis for the decision. The second objection to the
theory is that it often prevents the judiciary from achieving its proper goal of
doing justice in a case before it because of restrictions imposed by the dead hand
of two hundred years ago.217
Dworkin has rejected strict construction because it limits constitutional rights, to those
recognized by a limited group of people at a fixed date in history.218 Further, it seems plainer
that we have no fixed concept of group intentions, nor any way of determining which aspects of
individual mental states are relevant to group intentions.219 Dworkin argued that conflicting
interpretations present on their own merits, thus judges must decide which of the...competing
justifications is superior as a matter of political morality... [and rule] so as to further [the superior]
justification.220 Of the countermajoritarian concerns, he opines that a more equal society is a
better society even if its citizens prefer inequality.221
This tack implicitly acknowledges that extrinsic meanings are frequently preferable in
application even if the intrinsic meanings were clear. It has been ventured that non-interpretivist
scholars admit to speaking for a much narrower constituency among their contemporaries...[but]


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EXAMINATION AND ANALYSIS OF EDUCATION FINANCE LITIGATION IN THE
CONTEXT OF JUDICIAL REVIEW AND THE UTILIZATION OF STATISTICAL INDICES
OF EQUITY
By
GEORGE L. LANGE, JR.
DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF
FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY
UNIVERSITY OF FLORIDA
2005

ACKNOWLEDGMENTS
It is difficult to truly thank all of those individuals who have been instrumental in
assisting the completion of this dissertation and the attainment of a Doctor of Philosophy degree
from the University of Florida. The support that my father and sisters have given me has been
invaluable, as has the input of friends, faculty and fellow students here at the University of
Florida and previously at Slippery Rock University in Pennsylvania and the University of South
Carolina.
In the Department of Educational Leadership, Policy and Foundations, special thanks are
due the department chairman, Dr. James Doud and the graduate advisor, Dr. Katherine Gratto. I
am also indebted to the administrative staff of Angela Rowe, Eileen Swearingen and Barb Yaney
for their assistance. Special thanks are due to the members of my committee, Dr. David S.
Honeyman, Dr. Arthur Newman, and Dr. Richard K. Scher, for their insight, guidance and
support. My committee chair, Dr. R. Craig Wood merits appreciation and acknowledgment that is
beyond that which a few sentences can provide. A consummate professional, he has also served
as a mentor, a guide, and in more ways than he may realize, an inspiration. I shall always be
thankful for having had the opportunity to work with him.
Finally, I am moved to acknowledge those men and women of the Armed Forces of the
United States of America who have, from our nation's founding, given their lives that we may
enjoy the blessings of liberty and freedom. The opportunity that I was presented to pursue an
education in a free and secure nation was purchased with their sacrifice. All that I have done, or
shall ever do, pales in significance.
11

TABLE OF CONTENTS
Page
ACKNOWLEDGEMNTS ii
ABSTRACT iv
CHAPTER
1 INTRODUCTION 1
Notes 9
2 EDUCATION FINANCE: CONTEXT AND BACKGROUND 12
Notes 51
3 THE JUDICIAL BRANCH 62
Notes 116
4 EQUITY 134
Notes 144
5 EDUCATION FINANCE LITIGATION 147
Notes 314
6 SUMMARY 355
Notes 396
APPENDIX
A CASES CITING STATISTICAL INDICES 407
B TABLES OF CASES REFERENCED 411
REFERENCES 417
BIOGRAPHICAL SKETCH 432
ill

Abstract of Dissertation Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Doctor of Philosophy
EXAMINATION AND ANALYSIS OF EDUCATION FINANCE LITIGATION IN THE
CONTEXT OF JUDICIAL REVIEW AND THE UTILIZATION OF STATISTICAL INDICES
OF EQUITY
By
George L. Lange, Jr.
August 2005
Chair: R. Craig Wood
Major Department: Educational Leadership, Policy and Foundations
The purpose of this study was fourfold; to examine the explicit utilization of statistical
indices of equity in education finance litigation, a consideration of the same within the context of
the ongoing dialogue addressing judicial activism and the role of the judiciary in American polity,
the possible implications of the findings of the former for the later, and lastly, provision of a
framework with which to further explore education finance, weighing its philosophical
grounding, the larger question of judicial review and the evolution from an appreciation of equity
to one of adequacy. To that end, ninety-seven cases in total were addressed, from Sawyer v.
Gilmore, in 1912 to Hoke County Board of Education v. State, in 2004. Of these cases, seventy-
seven were state high court decisions, nine from state appellate courts, six from federal district
courts, one from a federal circuit court, and six cases before the United States Supreme Court.
The review of the education finance cases herein demonstrated a state jurisprudential stance that
has generally been grounded in Article III doctrine, despite significant institutional,
administrative, and constitutional differences between state and federal couits. Yet, while the
courts have historically carefully guarded application ofjudicial review , the emerging judicial
IV

trend exhibits a more aggressive posture, rendering decisions which present with tenuous
constitutional groundings, venture far into the realm of remedial prescription and oversight and
cast the courts as quasi-legislatures that define educational policy and goals, while constraining
fiscal discretion. The study of statistical indices over the course of the litigation record offers a
clear conclusion; few courts have called for complex statistical data and for the most part, at the
appellate level and beyond, simple indices were employed solely to inform the details of a case
but were irrelevant to the philosophical issue and the court’s predisposition.
v

CHAPTER 1
INTRODUCTION TO STUDY
“School finance is the vehicle through which society makes its critical decisions about investment
in education.”1
“School finance reform is like a Russian novel; it’s long, tedious and everyone dies in the end.”2
Public education legislation and the question of education finance in the United States
predates independence and the Constitution by nearly 150 years. In 1647 while attempting to
adapt to the new colonial environment, the Massachusetts Bay Colony passed legislation
requiring towns of at least fifty families to hire a teacher and communities of greater than one
hundred families to maintain a grammar school.'1 The subsequent adaptations these arrangements
underwent as societal and political circumstances warranted presaged the constant theme of
change in American educational jurisprudence and legislation. At the forefront of this dynamic
have been the state judiciaries, the application of constitutional textual interpretations and the
calculation of educational equity and adequacy.
The purpose of this study is fourfold; to examine the explicit utilization of statistical
indices of equity in education finance litigation, a consideration of the same within the context of
the ongoing dialogue addressing judicial activism and the role of the judiciary in American polity,
the possible implications of the findings of the former for the later, and lastly, provision of a
framework with which to further explore education finance, weighing its philosophical
grounding, the larger question of judicial review and the evolution from an appreciation of equity
to one of adequacy. To that end, ninety-seven cases in total are addressed, from Sawyer v.
Gilmore,4 in 1912 to Hoke County Board of Education v. State? in 2004. Of these cases, seventy-
seven are state high court decisions, nine from state appellate courts, six from federal district
courts, one from a federal circuit court, and six cases before the United States Supreme Court.
1

2
The research herein is a measured consideration of education finance litigation within the
context of judicial review. In conjunction with this concern, is the identification of the utilization
of statistical indices of equity. This study served to inform the discussion of the role of the
judiciary in American public education, the propriety of that engagement, and the principles
articulated in the concepts of adequacy and equity and the utilization of same in state and federal
jurisprudence. Commenting on the numerous and diverse concepts of judicial review, Canon
observed that it “is a central if not well-informed feature of the American system. As such it has
long been subject to both political polemics and scholarly analysis...thus, the concept...has little
common meaning; it has encompassed whatever a given writer or reader conveyed or inferred.”6
This indeterminancy is exacerbated at the state level given that the contemplation of judicial
review and constitutional interpretive theory, and characterizations of courts and jurists as activist
or restrained in reference to education finance litigation must be drawn through the prism of state
courts and constitutions. Following the construction of that “prism” both in a broad treatment of
review in the context of Article III courts and also state judiciaries, this study attempted to place
education finance litigation in toto along the continuum of judicial activism and restraint. To that
end, it delineated characteristics of those courts evidencing at either end within the context of
state jurisprudence. A second goal is an identification of judicial trends, reflecting recent
decisions, the construct of judicial federalism, and possible implications for the design and
administration of education policy. Thirdly, does there exist a correlation between the specific
utilization of statistical indices of equity and a judiciaries’ embrace of either an activist or
restrained posture. An ancillary design of this study is the provision of a resource addressing
school finance litigation, current scholarly appreciations, and a unique, detailed treatment of the
major cases in the field; this in addition to a broad treatment of judicial review, its historic and
philosophic antecedents and the major schools of constitutional interpretational theory and their
proponents.

3
The genesis of this study was spurred by an evolving judicial embrace of adequacy in
education finance litigation. Whereas statistical indices of equity provide distinct parameters, the
adequacy theory requires courts to define a remedial role relative to the legislative and executive
branches thus generating questions of judicial review, particularly separation of powers, political
questions doctrine, and judicial competence. Further, the adequacy cases call upon the courts to
define the purpose of education and interject the judiciary into administration and oversight. The
significant implications for education and fiscal policy, the perception and legitimacy of the
courts, and the political and economic importance of public education necessitate a work of this
nature in order to inform the consideration for the legal community, educators, legislators, and the
public; a calculation not of whether the courts will participate in the constitutional and policy
dialogue, but of what form of participation bests serves the educational needs of the individual
student, the states, and the nation. The expanded role state courts have assumed in education
finance under judicial federalism calls for a contemplation of the legitimate breadth of judicial
power, particularly in the state constitutional systems. As this study concluded, sixteen states
were embroiled in litigation challenging the public education finance distribution formula. It has
been marked that in reference to education finance litigation, the momentum has distinctly shifted
in favor of plaintiffs challenging the state on adequacy grounds.7 Heise has marked that the
“more theoretical and abstract questions raised by judicially-mandated school finance reform,”
draw attention to the broader contemplation of the role of the judiciary in a democratic society.8
Substantively, state spending regarding public education accounts for one of the largest segments
of its annual budget and court rulings impacting education finance influence allocations to other
areas. Numerous institutions are involved in the funding of public education and, in conjunction
with a number of social and political variables, make any initiative to influence education finance
difficult to construct and gauge. A host of studies had demonstrated the uncertainty over what
effect the interjection of the judiciary has upon educational spending and quality, and the
propriety of the an ever increasing judicial profile. Absent in these studies was reference to the

4
unique state judicial and constitutional context within which these decisions were generated, the
constitutional interpretive theory employed, and the utilization of statistical indices of equity and
the presence or absence of a correlation of same to the court’s treatment of judicial review and the
constitutional text.9
Further underscoring the necessity of an informed consideration of the role of the
judiciaiy, constitutional theories utilized, and the treatment of adequacy and equity, are the
widespread concerns currently presenting in regards to the current state of American public
education. In a nation that embraces a concept of meritocracy, the premise that all children are
entitled to an adequate education that prepares them for active, informed participation in a
democratic society is beyond dispute. Not as clear is what exactly entails an adequate education
and to which institution should that determination be entrusted. Contributing to the urgency of
that calculation in a nation that likes to consider itself the embodiment of meritocracy is, as the
The Economist recently found, “a growing body of evidence [that] suggests that the meritocratic
idea is in trouble in America.”10 The study found that as income disparity grew to unprecedented
levels, social mobility stagnated, a development that may presage the United State’s “calcifying
into a European-style class-based society.”11 Cited as a major contributory factor was the
education system; operating on the premise that upward mobility has become increasingly
determined by education, the work found that the education system has become stratified by
social class and disparate funding.12 Hochschiled recently observed that during the 1970s, four in
ten Americans expressed a great deal of confidence in public education, a percentage that had
fallen to less than one quarter as the Twentieth Century drew to a close.13 She noted that the
percentage of Americans who believed that education was the most important problem facing the
country rose from 2 to 13 percent.14 In light of these concerns, the 36lh Annual Phi Delta
Kappa/Gallup Poll of the Public Attitudes Toward the Public Schools1 ’ in 2004 found that nearly
one quarter of the American public now believed that lack of financial support represented the
greatest impediment to improving education, while half of the nation rated public schools

5
mediocre as best.16 However, in the fall of 2004 voters expressed caution regarding any increase
in public education financing, as a score of state initiatives to increase school funding v/ere
defeated.17 John G. Matsusaka, president of the Initiative and Referendum Institute at the
University of Southern California found that while voters were willing to increase funding for
health care and other social programs, they were reluctant to do so for education, concluding it
“was a bad day for education.”18 Reflecting the specter of education finance litigation as a Sword
of Damocles, voters in Alabama defeated a referendum that would have removed language from
the 1901 state constitution that required segregated schools and poll taxes to pay for education.
Opposition to the initiative, however, was spurred by the additional proposal to remove a passage
stating that nothing in the state constitution mandated “any right to education or training at public
expense.” According to opponents, the removal of the phrase in question would increase the
state’s vulnerability to education finance lawsuits. One observer marked that “when you swing
that door open, there is unlimited opportunity for mischief...it’s a trial lawyer’s dream.”19
The presence of a skeptical and conflicted public in reference to education also presents
in the perception of judiciary. As noted, the involvement of the judiciary in the construction and
oversight of education and fiscal policy has the potential to place the courts squarely within
political maelstrom, calling into question judicial legitimacy and threatening judicial
independence. G. Alan Tarr, recently addressed the matter, commenting that the recent general
decline in public confidence in the judiciary reflected developments within the legal community;
particularly the fact that the concept of judicial fidelity to the law' has been complicated by the
absence of consensus as to how the law is interpreted and the delineation of the exercise apart
from legislating.20 Hensler noted an increased skepticism regarding the impartiality of the
administration of justice; a heightened perception that judicial decisions are not based upon the
legal merits, thereby weakening the rule of law and arguments for judicial independence.21 Given
that education finance litigation entertains constitutional texts which do not provide unambiguous
or dispositive guidelines, the judicial concerns are particularly germane to their contemplation.

6
Considering the increasing success oí advocates of increased education funding in the
courts, Hunter observed that “it does feel to us when we have a major win that just builds
momentum.”22 Lindseth opined that “there's sort of a bandwagon effect, courts are looking at
what’s happening in other states, and they’re jumping on the bandwagon.”23 This trend
underscores the timeliness of the consideration this study seeks to inform, particularly in light of
the recent decisions from Wisconsin,24 New York,25 and Massachusetts;'6 cases detailed, infra
test.
The momentum of these cases presents as a limitation to this study. As this work was
being completed, decisions from the state high courts in Kansas, Massachusetts, and Montana
were pending, and adequacy cases were being initiated in Arizona, Nebraska, Georgia, Missouri
and Kentucky.27 Wood and Thompson have noted that “the dynamics of contemporary education
finance litigation make it virtually impossible to present an accurate account of all actions before
every trial court.”28 In addition, within the treatment of public school funding, the term education
finance litigation refers to those cases which challenge the method under which the state funds
education on federal and/or state constitutional grounds. While that serves to limit the scope of
consideration, a further restraint was introduced in confining the study to cases generated at the
appellate level.29 It is also necessary at the juncture to qualify that the author does not propose to
introduce a critique of recently enacted school reform legislation in response to judicial mandate.
Rather than entertaining the efficacy of an activist or restrained judiciary, the study is restricted to
the issues raised by court involvement or lack thereof; considered within the context of unique
state constitutions and judiciaries, the concepts of equity and adequacy, and the implications for
education policy and state political and legislative processes.
This study was designed primarily as a review of relevant state caselaw. Significant
federal caselaw was also examined, in order to illuminate Article III court doctrine in reference to
review and the precedential value these cases have had for adjudication at the state level. The
emphasis in this research was on primary source materials, namely published federal and state

7
court decisions. A wide variety of secondary sources were also consulted and evaluated in order
to provide background for this work and for the construction of the contextual frame of reference
for judicial review and equity and the interpretation of primary sources.
The most challenging and extensive research invested in this study was devoted to the
identification of pertinent primary sources in the form of reported case decisions. A variety of
tools and methods were used to achieve the most comprehensive results. An invaluable initial
source of education finance litigation cases was R. Craig Wood and David Thompson’s
Education Finance Law: Constitutional Challenges to State Aid Plans—An Analysis of
Strategies.30 West’s Education Law Reporter Digest31 was also another key source. All issues of
this index were researched under both key word and key numbers. Key terms included “School
Finance,” “Education Finance,” “Public Schools,” and “Public Education.” All indicated case
references then were referenced manually in either the Education Law Reporter32 or the original
case reporter. A similar exercise was conducted utilizing the LEXIS/NEXIS" system. Primarily
used to access more recent case decisions, those already in print were referenced manually from
the appropriate case reporter. The website of ACCESS.34 also proved invaluable in identifying
past education finance litigation and current legal initiatives. In addition, after identifying cases
from the aforementioned, the decisions were reviewed individually for references for related
cases not located in the initial searches. Secondary' sources were utilized in a similar fashion.
The majority of the cases were cited from the legal reporters compiled by the West’s
National Reporter System, including the federal and regional reporters.35 In those instances when
the decisions were not available from the reporters, then specific state reporters were referenced.36
The citation source within the text for this study was The Bluebook: A Uniform System of
Citation.37 and The Chicago Manual of Style 38 was referenced for the bibliographical entries.
A wide variety of secondary sources were utilized in this study. Texts and books were
located through the University of Florida George A. Smathers Library On-Line Catalogue,39
which also allowed access to other academic libraries. Journal articles were located through a

8
variety of sources, including the U.F. On-Line Catalogue (which included the E-Journal Locator,
the Index to Legal Periodicals, and the Eric system) and LEXIS/NEXIS.40 Works and journal
articles secured were also examined for further references therein. A search was also conducted
in Pro-Quest Digital Dissertations,41 which found no unpublished dissertations similar to this
work or of direct assistance.
This study represented an effort to place education finance litigation within the context of
judicial review, consider the application of statistical indices of equity in these cases, and provide
background and information in both the realms of school finance and judicial review in order to
inform the concerns of a variety of users, and facilitate access to the litigation record. To that end,
this work is divided into six chapters. Chapter 1 provides an overview of the study, a discussion
of the need for the study, limitations, methods and materials utilized, and organization. Chapter 2
is devoted to education finance, particularly its historical and philosophical antecedents, and a
review of the literature in the field. Chapter 3 is focused upon the judiciary, notably the question
of judicial review and the development of the concept in American jurisprudence; the positions of
proponents and advocates reflected in both the scholarly and popular literature; the doctrine as
applied in Article III courts; and the unique nature of state constitutions and judiciaries in order to
frame the consideration of activism in state jurisprudence. Chapter 4 addresses equity,
particularly in reference to education and the characteristics and application of statistical indices.
Chapter 5 is a chronological review of education finance litigation, from 1912 through 2004. The
final chapter is a summary of findings, citation of cases presenting as activist or restrained, and a
consideration of possible implications for further litigation and the design and administration of
education policy.42

9
Notes
1 William Clune, New Answers to Hard Questions by Rodriquez: Ending the Separation of School
Finance and Educational Policy by Bridging the Gap Between Wrong and Remedy, in, 25 CONN LAW REV.
721,755 (1992).
2 Mark Yudof, School Finance Reform in Texas: The Edgewood Saga, in, 28 Harvard JOURNAL
ON LHGiSLATiON 499 (1991).
3 W.E. Sparkman, The Legal Foundation of Public School Finance, in, 35 BOSTON La V/ REV. 570,
571 (1996).
4 83 A. 673 (Maine 1912).
5 599 S.E.2d 365 (N.C. 2004).
5 Bradley C. Canon, A Framework for the Analysis of Judicial Activism, in, Supreme Court
Activism and Restraint 385 (Stephen Halpem & Charles Lamb, eds. D.C. Heath, 1982).
' David Hoff, States on Ropes in Finance Lawsuits, in, EDUCATION WEEK 15 (Dec. 8, 2004).
8 Michael Heise, 1997 Winston S. Howard Distinguished Lecture; Schoolhouses, Courthouses,
and Storehouses: Educational Finance, Constitutional Structure, and the Separation of Powers Doctrine,
in, 33 Land & Water Law Rev. 281 (1998).
9 See, e g., Paul Minorini & Steve Sugarman, Educational Adequacy and the Courts: The Promise
and Problems of moving to a New Paradigm, in, Equity and Adequacy in Education Finance 173 (H. Ladd,
et al., eds. National Academy Press, 1999); Mark Rebell, Educational Adequacy, Democracy and the
Courts, in, Achieving High Educational Standards for All: Conference Summary 218 (T. Ready, et al., eds.
National Academy Press, 2002); D. Verstegen, Judicial Analysis During the New Wave of School Finance
Litigation, in, 24 JOURNAL OF Education Finance 2,51 (1998); William Colwell, Judicial Review: Issues
of State Court Involvement in School Finance Litigation, in, 24 JOURNAL OF EDUCATION FINANCE 2 (1998);
James Dayton, Examining the Efficacy of Judicial Involvement in Public School Funding Reform, in, 22
Journal of Education Finance 1 (1996); Michael Heise, State Constitutional Litigation, Education
Finance, and Legal Impact: An Empirical Analysis, in, 63 U. OF CONN. Law Rev. 1735 (1995); James
Cohen, Judicial Control of the Purse—School Finance Litigation in the Courts, in, 28 WAYNE LAW Rev.
1393 (1982); James Ward, Implementation and Monitoring of Judicial Analysis, in, The Impacts of
Litigation and Legislation on Public School Finance: Adequacy. Equity and Excellence 225 (J. Underwood
& D. Verstegen, eds., Harper and Row, 1998); William Fischel, School Finance Litigation and Property
Tax Revolts: How Undermining Local Control Turns Voters Away from Public Education, in,
Developments in School Finance. 1999-2000 79 (Fowler, ed , National Center for Education Statistics,
2000); B. Joondeph, The Good, the Bad, and the Ugly: An Empirical Analysis of Litigation Prompted
School Finance Reform, in, 35 Santa Clara Law Rev. 763 (1994); R. Manwaring & S. Sheffrin,
Litigation, School Finance Reform, and Aggregate Educational Spending, in, 2 INTERNATIONAL, Tax and
Public finance 107 (1972); D. Thompson & F. Crampton, The Impact of School Finance Litigation: A
Long View, in, 27 JOURNAL OF EDUCATION FINANCE 133 (2002);
10 Ever Higher Society, Ever Harder to Ascend-Meritocracy in America, in, The ECONOMIST (Jan
1,2005), available at,
http://web.lexisnexis.com/iiniverse/document? m=fa9a8052e06d85966621 Q8141494a38& docnum=l&wc
hp+dGLbVzz-zSKVA& md5 =aea78010fc05 at * 1.
ii
Id

10
12 Id. at *2; The study also noted that these poorer districts were plagued by an aversion to the
introduction of measures of accountability, merit pay for teachers, and incentives for outstanding students;
contributing to the creation of “dumbed-down” schools, id.
13 Jennifer Hochschiled, The Poll-Trends: Governance & Reform of Public Education, in, 62 PUB.
Opinion Q. 79 (1998).
14 Id. at 80.
15 36th Annual Phi Delta Kappa/Gallun Poil of the Public Attitudes Toward the Public Schools
(2004) available at, http://www.pdkintl.org/kappan/k0409pol.htm
16 Id.
17 See, Table: Ballot Measures, available at,
http://www.edweek.Org/ew/articles/2004/l 1/10/11 iniitiatives-sl.h.24.html: Tax reform and school spending
measures designed to increase funding for pubic education were defeated in Alabama, Arkansas, Nevada,
and Washington. Voters in California approved a measure preventing the state from setting local property
tax rates for funding education, while in Louisiana property-tax exemptions were increased for primary
residence. In North Carolina, voters did approve of the allocation from fines and civil penalties, while in
Colorado, an initiative dedicating sixteen percent from an increase in cigarette taxes to education was
approved.
18 David Hoff & Andrew Trotter, Voters Largely Reject Funding, Policy Shifts, in, Education
WEEK 24 (Nov. 10, 2004) (citing John G. Matsusaka).
19 Id. at 27.
20 G. Allan Tarr, State Judicial Selection and Judicial Independence, in, Commission on the 21st
Century Judiciary Appendix D, 9 (ABA, 2003).
21
Deborah Hensler, Do We Need an Empirical Research Agenda on Judicial Independence? in, 72
So. Cal Law Rev. 707 (1999).
'2 Hoff, supra note 7 at 15 (citing Molly Hunter of the Advocacy Center for Children’s Education
Success with Standards).
"3 Id. at 16 (citing Alfred A. Lindseth of the law firm of Sutherland, Asbill & Brennan that is often
called upon to represent states in education finance cases).
24 Vincent v. Voight, 614 N.W.2d 388 (Wis. 2000).
25 Campaign for Fiscal Equity, Inc. v. State, 769 N.Y.S.2d 106 (N.Y. 2003).
26 Hancock v. Driscoll, 2004 Mass. Super. LEXIS i 18 (Mass. Supp. 2004).
See, Hoff, supra note 7.
28 R. Craig Wood & David C. Thompson. Education F inance Law: Constitutional Challenges to
State Aid Plans—An Analysis of Strategies 98 (2nd NOLPE, ! 996).
29 The study was confined to the appellate level primarily due to the general inaccessibility of the
trial court record and the design to present a concise, yet comprehensive chronological record that could be
referenced in a relatively timely fashion.

11
30 Wood, supra note 27.
31 West’s Education Law Reporter Digest ( West Publishing Company, i983-).
32 Id.
3 http://web.lexis-nexis.com/universe.
j4 A national project of the Campaign for Fiscal Equity, Inc., retrieval at,
http://www.accessdnetwork.org/.
35 The regional reporters record state court decisions.
36 The only state cases not generally found in the regional reporters were from states with
extensive state litigation, namely New York and California.
37 Harvard Law Review Association, The Bluebook: A Uniform System of Citation (17th ed.
Harvard Law Review Association 2002).
38 The University of Chicago, The Chicago Manual of Style (14th ed. University of Chicago Press
1993).
39 http://www.uflib.uf1.edu/.
40 Supra note 10.
41 ,
http://wwwlib.umi.com/dissertations/gatewav.

CHAPTER 2
EDUCATION FINANCE: BACKGROUND AND CONTEXT
Public school finance policies and the quest for school finance reform result
from, and are embedded in, the basic value conflicts in American life and need to
be understood in that context. The struggle for equity and justice in financing
public schools has been influenced and guided by fundamental values conflict in
American society and emerging policies result from tentative and temporary
consensuses that have been reached at any point of time.1
Public education in America has been a mirror of the nation’s concerns and aspirations.
R. L. Johns observed that though it dates from Seventeenth Century New England, its genesis was
not spurred by concerns for altruistic, humanistic, or economic interests, but rather to defeat, “ye
olde deluder Satan.”2 From its inception through the early Nineteenth Century, education was
considered to be primarily a church and/or family responsibility. Although the first property tax
for local schools was levied in Dedham, Massachusetts in 1648 and New Hampshire required
local taxation to support elementary schools in 1693,3 support for early schools came from a
variety of sources. Bailyn marks that “in the colonial period, financing of public schools was
achieved through a blending of local resources: local taxation of property, philanthropy and
charitable gifts, and the use of public utilities such as ferries and mills, among other sources.”4
State aid for local schools emerged in New York as the Eighteenth Century drew to a close and
was codified into law in 1812 with flat allocations of fiscal aid designed to stimulate local effort.
However any question of equalization or how to address local discrepancies in fiscal capacity did
not present until mid-century as it became apparent that the degree of local support varied
considerably from locale to locale.5
As the common school movement gained traction under Horace Mann of Massachusetts
and Henry Barnard of Connecticut it soon became apparent that one of the most daunting
challenges was establishing the principle of free public education. Making the case years earlier
12

13
in Britain, economist William Petty wrote in 1662 that education should be a “publick charge,”
given the benefits that would accrue to society as a whole. In appraising Seventeenth Century
England, Petty saw far too many lawyers, doctors, and preachers and believed that if the
government were to finance education it could cut the number of parishes in half, reduce the
number of lawyers by ninety-nine percent and extinguish that “infinite swarm of vain pretenders
unto, and abusers of [medicine].”6 Economic historian Earnest Johnson suggested that “Petty’s
general attitude (if not his disdain for particular professions) was typical of early economists, who
felt that society would improve in various ways if the state would take an active hand in
education.”7 However in America the concept of a free public education was considered a radical
step. Regarding the argument for the establishment of public schools, Johns remarked that “I have
not been able to find any authentic documents published between 1830 and 1860 in which it is
argued that children have a right to a free public education.”8 Church schools, dame schools, and
one room school houses supported in small measure by local taxes augmented by private
financing and tuition generally represented the breadth of provision of education in the early
republic. In terms of administration, each small town functioned in effect as a school district,
although in the urban centers larger school systems began to emerge. Spurred by the realization
that education was vital in the new nation and illuminated by a nascent common school
movement, initiatives were undertaken to create statewide systems of oversight and coordinated
programs of local support. Odden and Picus have marked that, “by 1820, 13 of the then 23 states
had constitutional provisions, and 17 had statutory provisions pertaining to public education.”9 In
addition, they note that as control in the common school era slowly moved from the church and
family to local lay boards of education, by the mid to late 1800s most states “required local
districts to fully finance mandated public schools through local property taxes.”10 This
development, although meager, was a far cry' from the patchwork method of funding schools
witnessed hitherto. Although not generally considered a state responsibility, there was a growing
tendency before the Civil War for states to maintain what were termed “permanent endowments”

14
that were earmarked specifically for public schools.'1 Historian Steven Rippa, assessing these
funds, observed that:
[T]hey were first established by those older states that did not snare in the
congressional land grants. Consisting largely of miscellaneous revenues derived
from escheats (or fines), liquor licenses, marriage fees, and other sources, the
earliest school funds were small and were usually allowed to accumulate before
being apportioned to the schools.12
The funding programs hoped to encourage local effort by tying apportionment to the
institution of voluntary local revenue generating initiatives. States soon took steps to provide for
local support by disbursing funds solely on a matching basis. First adopted in New York in 1805
it was soon patterned across the young republic. However, it quickly became apparent that the
permanent endowments and the hoped for local support were not dependable sources of revenue.
In response, Rippa writes that “the states passed laws permitting the local districts to tax
themselves for public schools if the people voted for the tax levy. But every effort toward
taxation was hotly contested by the local citizens. Later, most states found it necessary to enact
laws forcing the local districts to tax themselves up to a limited point for school support.”13 Yet,
in the main, the support of education was dependant upon revenue generated through the
collection of tuition from individual families.
Pauper school laws throughout the northeast provided for the funding of education for
children of the poor, not an insignificant portion of the population. These statutes required parents
declare themselves publicly as paupers before tuition from the state was provided to allow their
children to attend the nearest public school. Special funds, much like the permanent endowments,
were created for these cases, derived in much the same manner as revenue collected for other
public needs. However, very few parents were inclined to identify themselves as paupers in order
to warrant that charity. These factors conspired to ensure that few students were actually enrolled
in what public education was available. It has been estimated that by 1828 over half of the
400,000 children in the state of Pennsylvania were not enrolled in any form of schooling.14

15
An example of state response to these dynamics was the Pennsylvania Free School Act of
1834. The legislative initiative was the direct result of the efforts of common school advocates
who had sustained a long campaign to eliminate the pauper school laws, reduce the dependence
on tuition and create a statewide education system. The act created 987 rural and urban school
districts, which were to hold election to determine if the citizenry would accept the provisions of
the act, particularly the targeted local tax levy. Those districts that declined were to continue
under the old miscellaneous funding schemes, i.e., pauper school laws. Contemporary accounts
mark that the response to the measure was so divisive that towns, churches, and families split on
the issue.15
A move to repeal the legislative decree was begun almost immediately. In support,
Thaddeus Stevens addressed the Pennsylvania House of Representatives on April 11, 1835. In
remarks that present as a harbinger of the adequacy argument, Stevens asserted that:
[I]f an elective republic is to endure for any great length of time, every elector
must have sufficient information, not only to accumulate wealth, and take care of
pecuniary concerns, but to direct wisely the legislatures, the ambassadors, and the
executive of the nation—for some part of all these things, some agency in
approving or disapproving of them, falls to every freeman. If they, the
permanency of our government depends upon such knowledge, it is the duty of
the government to see that the means of information be diffused to every' citizen.
This is a sufficient answer to those who deem education is a private and not a
public duty—who argue that they were willing to educate their own children, but
not their neighbor’s children.16
Perhaps due to Steven’s eloquent defense of tax supported public schools, the initiative to
repeal was defeated, however funding for schools remained haphazard and vulnerable to local
proclivities in addition to fiscal capacity. Any concept of equalization or equal educational
opportunity was foreign to any district or legislature, as the prevailing political and legal doctrine
of the Nineteenth Century was premised on the appreciation of taxation neutrality. Horwitz
remarks that “the po wer of taxation presented the most formidable difficulties for nineteenth
century [sic] jurists intent upon establishing a neutral state by limiting the redistributive capacities
of government.”17 Although the principle of using tax revenue for public schools had been

16
established if not publicly embraced, the main concern of the courts '.vas the maintenance of
property rights and any initiative or policy that attempted to redistribute resources was considered
“a threat to liberty and property.”18 Of the era, Ward had written, “[a]t the close of the nineteenth
century, [sic] prevailing legal doctrine is clearly supportive of taxation for the purposes of raising
revenues for public schools, but is not supportive of taxation for redistributive puiposes that
would permit equalization and is very protective of the economic rights of the affluent.”19 Despite
these limitations, from 1830 to 1860 support for public education spread from the northeast to the
middle-western and western states. However, the aforementioned authorizations to levy school
taxes did not ensure that such levies were enacted and the universal provision of a free public
education remained an ideal. Johns has noted that:
The Seventh Census of the United States shows that only [one-half] of the
children of the New England states were provided free education, [one-sixth] of
the Western states and [one-seventh] of the Middle states by 1850. In the
Southern states almost no free tax supported schools were available except for
paupers.20
The courts while protective of property rights and concerned with reining in any impulse
to redistribute tax revenues, were generally silent on the specific question of funding schools.
When they did reference education, they reinforced the status quo. In Plessy v. Ferguson,2' a case
addressing separate public transportation facilities based on race in Louisiana, the Supreme Court
countenanced the prevailing separate but equal provision of education. The opinion, referencing
the concept of “separate but equal” noted that “the most common instance of this is connected
with the establishment of separate schools for white and colored children, which has been held to
be a valid exercise of legislative power even by courts of States where the political rights of the
colored race has been longest and most earnestly enforced.”22 Of the decision's educational
ramifications, Wood and Thompson have pointed out that “[t]he first significant and specific
public school suit based on the Plessy doctrine occurred in Cummings v. Richmond in 1899.”23 In
the first case dealing with the funding of public education to come before the Supreme Court, a
county school board in Georgia refused to provide a high school for African-American students,

17
despite the fact that such an institution was provided for white students. While the school board
argued that it could not afford two such schools, the “plaintiffs argued that either a school for
minority children would have to be created or that the school for white children would have to be
closed.”24 The Court, in finding for the defendants, wrote that:
If that were done, the results would only be to take from the white children
educational privileges enjoyed by them, without giving to colored children
additional opportunities for the education furnished in high schools. The colored
children of the county would not be advanced in the matter of their education by
a decree compelling the defendant board to cease giving support to a high school
for white children.25
In distinguishing between a nonarbitrary denial of equal treatment and a hostile denial of equal
treatment, the Plessy and Cummings decisions underscored the Court’s thinking in reference to
the Fourteenth Amendment over the course of the next half century.26
The first conceptualization of equity in education finance to enter into this legal and
legislative paradigm was woven by Ellwood Cubberley in 1905. In his now classic doctoral
dissertation, School Funds and Their Apportionment,2' Cubberiey offered a fundamental theory
of school finance, writing that:
Theoretically, all children of the state are equally important and are entitled to
have the same advantages; practically this can never be quite true. The duty of
the state is to secure for all as high a minimum of good instruction as is possible,
but not to reduce all to this minimum; to equalize the advantages to all as nearly
as can be done with the resources at hand; to place a premium on those local
efforts which will enable communities to rise above the legal minimum as far as
possible; and to encourage communities to extend their educational energies to
new and desirable undertakings.28
Maintaining that it was incumbent on the state to provide for the highest level of education
possible for all children, Cubberley did concede that the equality of all children was not possible
to sustain in a public education system.29 In advocating a flat grant or a form of minimal
guarantee, he observed:
1. That due to the unequal distribution of wealth, the demands set by the states
for maintaining minimum standards cause very unequal burdens. What one
community can do with ease is often an excessive burden for another.
2. That the excessive burden of communities borne in large part for the
common good should be equalized by the state.

18
3. That a state school tax equalizes the burden.
4. That any form of state taxation for schools fails to accomplish the ends for
which it was created unless a wise system of distribution is provided.30
Harland Updegraff of the University of Pennsylvania offered the next significant
contribution to a theoretical construct of school finance. In 1922 Updegraff amplified
Cubberley’s thesis:
[Advancing the concept that as local school districts were able to spend greater
moneys for public education, the state would then vary the amount of state
support as a result of these local efforts. Updegraff argued that every child could
be assured a minimum level of education in relation to the levels that other
children received regardless of their location within a given state.31
In a survey he made of rural schools in 1921, Updegraff proposed that the wealth of the local
school district be entirely eliminated as a factor affecting the quality of a child’s education. In
Rural School Survey of New York State: Financial Support.32 Updegraff s study proffered that
“the quality of a child’s education be made dependant upon local effort but that the state should
equalize educational opportunity with state funds so that the total amount of revenue per teacher
unit would be the same in all districts making the same effort regardless of variations in
wealth.”33
While Cubberley and Updegraff wrote, states had begun to introduce statutes requiring
each locality to have at least an elementary school and correspondingly made provision for a
lump sum, or flat grant, from state coffers to be distributed per school. Of this funding scheme
that had dated in some locales from the middle of the Nineteenth Century, Odden and Picus noted
“this approach remedied the problem of the poorest locality being unable to create a school on its
own; in these communities, state funds often became the only fiscal support for the school.”34
During the 1920s the state of New York created a commission to explore the possibility of
establishing a new education finance structure that went beyond the flat grant. A former
classmate of Cubberley’s, George D. Strayer of Columbia, and his colleague Roger Haig were
hired as consultants to the commission. Their work produced a formula that would come to
dominate school finance through the Twentieth Century; a foundation plan that attempted to

19
provide a minimum program for the funding of schools. In the Report of the Educational Finance
Inquiry Commission. Yol, I.35 Strayer and Haig wrote:
There exists today and has existed for many years a movement which has come
to be known as the “equalization of education opportunity” or the “equalization
of school support.” These phrases are interpreted in various ways. In its most
extreme form the interpretation is somewhat as follows: The state should insure
equal education facilities to every child within its borders at a uniform effort
throughout the state in terms of the burden of taxation; the tax burden of
education should throughout the state be uniform in relation to taxpaying ability,
and the provision for schools should be uniform in relation to the educable
population desiring education. Most of the supporters of this proposition,
however, would not preclude any particular community from offering at its own
expense a particularly rich and costly educational program. They would insist
that there be an adequate minimum offered everywhere, the expense of which
should be considered a prior claim on the state’s economic resources/6
The principles of a state model Strayer and Haig proposed included:
1. A local school tax in support of the satisfactory minimum offering would be
levied in each district at a rate which would provide the necessary funds for
that purpose in the richest district.
2. The richest district then might raise all of its school money by means of the
local tax, assuming that a satisfactory tax, capable of being locally
administered could be devised.
3. Every other district would be permitted to levy a local tax at the same rate
and apply the proceeds toward the cost of schools.
4. [But] since the rate is uniform, this tax would be sufficient to meet the costs
only in the richest district and the deficiencies would be made up by the state
subventions.37
Under this theoretical design, essentially proposing a guaranteed tax yield, it would be
possible for a school district not to receive any aid from the state. Although their work did
operationalize much of the earlier educational finance research through the provision of a
foundation plan, Strayer and Haig did stake a philosophical reorientation.38 In a departure from
the reward for local tax effort advocated by Cubberley and Updegraff, they asserted that:
Any formula which attempts to accomplish the double purpose of equalizing
resources and rewarding effort must contain elements which are mutually
inconsistent. It would appear to be more rational to seek to achieve local
adherence to proper education standards by methods which do not tend to destroy
the very uniformity of effort called for by the doctrine of equality of educational
opportunity 39
The goals Strayer and Haig were attempting to operationalize included:

20
1. Ensuring equal educational facilities to every- child in the state.
2. Providing for uniform tax effort throughout the state.
3. Ensuring that the tax effort is related to the ability to pay.
4. In no way hindering the ability of local districts to raise funds above the
minimum level to provide a better education for their children.40
Paul Mort, one of Strayer’s students at Columbia, assisted in the development of
techniques for the implementation of Strayer and Haig’s principles. However, as Johns has
suggested, he was “more than a technologist. He was also a theorist and disseminator.”41 Mort’s
proposed framework of a state guaranteed minimum program incorporated theoretical and
logistical underpinnings that marked:
1. An educational activity found in most or all communities throughout the state
is acceptable as an element of an equalization program.
2. Unusual expenditures for meeting the general requirements due to causes
over which a local community has little or no control may be recognized as
required by the equalization program, if they arise from causes reasonably
within the control of the community they cannot be considered as demanded
by the equalization program.
3. Some communities offer more years of schooling or a more costly type of
education than is common. If it can be established that unusual conditions
require any such additional offerings, they may be recognized as part of the
equalization program.42
The Strayer-Haig-Mort formulas, as they generally came to be known, materially
operationalized the earlier conceptualizations of educational financing schemes to reflect
common educational programs. In consideration of this development, Wood and Thompson
commented that “it was the intention to ensure that each child within a given state would be
offered essentially the same educational opportunity,” and in order to do so “Mort advanced the
concept of the weighted pupil in which moneys distributed to school districts would be based on
the classification scheme of pupils.”43
In the 1930s, Henry Morrison emerged as the next significant educational finance
theorist, advancing the proposal that the funding of public education be based on full state
support. While at the University of Chicago, Morrison questioned whether state funding in
conjunction with local support could actually provide equivalent schools while also ensuring
equal tax burden. Answering in the negative, Morrison observed:

Our extended analysis of the nature of the state school as a civil institution, of its
economic and financial foundations, of the requirements of a fiscal and political
structure founded on the school district in its various territorial forms, leads us
unerringly to the conclusion that the several states themselves are the appropriate
fiscal and administrative units in support and conduct of citizenship schools
which has long been held to be the cornerstone of our policy as a self-governing
state.44
Morrison argued that “local school support disequalized educational opportunity and that the
equalization formulas proposed by Cubberley, Strayer, and Mort had failed to equalize
educational opportunity and never would do so.”45 Constructing a controversial theory that
dismissed the local district as the focus of fiscal and administrative control, Morrison wrote:
The objection to taxation for purposes which are in principal and reality state or
national, merely because certain taxables have become concentrated in cities or
in a few states, is, of course, equivalent to an objection on the part of rich
families to be taxed on their ability to pay taxes, lest they should thereby be made
to carry the burdens of other people. The point is fundamental in the whole
theory of the individual’s relation to civil society... When the purpose is
inherently a state purpose, as is the case with public schools, it matters not where
the taxables are concentrated, assuming no uneconomic use of the taxing power
is made. Even though 90 percent of the taxables are in a single city, the
obligation rests as heavily on that city as local obligations which are related to
municipal purposes pure and simple.46
Hawaii has been the only state to date which has adopted Morrison’s funding proposal. Although
his ideas have generally failed to gain purchase among policy makers and school finance
specialists, the concept did reemerge, albeit briefly, in the 1970s, as states wrestled with court
challenges and funding disparities.47 This brief’s subsequent trace of educational finance
litigation entertains the viability of Morrison’s funding premise in light of court intervention.
Although the Twentieth Century had witnessed significant progress in the interpretation
of school finance data and the advancement of various conceptual models, they were rarely put
into practice. Of the era, Wood and Thompson have noted that state legislatures were often
reluctant to actualize changes and that “even in early lawsuits, the litigation process had difficulty
in attempting to operationalize the newest research being disseminated every year within a system
that was based on a political process of distributing moneys to a public agency.”48 It should be
recognized that courts when interpreting laws will “tend to reflect the morals and ethics of the

22
time although they may deny doing so.”44 The timbre of these times changed significantly with
the Brown v. Board of Education50 case of 1954. In reversing Plessysx the Supreme Court
accented the importance of equal educational opportunity. The Court opined, in a passage
ubiquitous in any educational tome, that:
Today, education is perhaps the most important function of state and local
governments. Compulsory school attendance laws and great expenditures for
education both demonstrate our recognition of the importance of education in our
democratic society...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.52
Of this decision, it has been written that it “marked the modem era of finance theorists using the
courts as the vehicle to shape education finance change. Social equity would ease into the
consciousness of the American public from this point forward.”53
Thomas Lowi has termed this period, particularly from 1940 through the 1960s as the
“Second Republic” due to growing emphasis upon the regulatory power of the government and
the redistributive programs of government; “both sharp breaks from past governmental policies
and dispositions.”54 Capitalizing on the logic of Brown, Arthur Wise proffered an argument for
school finance reform through federal court litigation. Wise asserted that the absence of equal
educational opportunity, evidenced by unequal expenditures constituted a state denial of equal
protection of the laws. In an argument premised on the consideration of education as a
constitutional right, Wise contended that the state had no reasonable basis on which to justify
making a child’s education contingent on the district’s wealth.55 Contemplating the origins of
identified inequities, Wise found that:
Educational inequality facilitated by a system of local financing exists because of
a combination of at least three factors: the self interest of the privileged, their
tendency to reside apart from the lower class, and the inability of the average
person to assess the quality of education available to his child, much less know
what is available elsewhere.56
Arguing that for equal protection purposes, education was a fundamental right, Wise charged that
absent a compelling reason educational resources could not be inequitably distributed. Drawing

23
on the one man-one vote principle of reapportionment cases he advanced a one scholar-one dollar
standard for education finance. He contended that:
In short, if the disparities in educational provision are to be diminished, the
courts will probably have to accomplish it. They may do so because, as this study
has suggested, the difficulty can be seen as constitutional—specifically, an equal
protection—problem. The concern here is the impact of the states’ school-finance
laws on the rights of individuals.57
On the heels of Wise’s study, John Coons, William Clune, and Stephen Sugarman
detailed the evolution of school finance systems and how they contributed to serious funding
discrepancies favoring children in wealthier districts.58 While documenting the failure of various
education funding schemes to provide for equity, Coons and his colleagues proposed a power¬
equalizing system, which as Ward had observed was not dissimilar in effect as Morrison’s
aforementioned state centric financing program.59 Premising their argument on the proposition
that “the quality of public education may not be a function of wealth other than the total wealth of
the state,’’60 Coons, et. al., helped set the stage for a new era in school finance that would soon
dawn in a California courtroom. The constitutional norm they pointed to did not insist on a
uniform state system; they acknowledged that some discrepancies might be warranted and saw
certain advantages in local control. According to Minorini and Sugarman, what the legal
researchers found unfair was that:
[Something as important as education was distributed on the basis of wealth and
poverty (albeit wealth and poverty of communities, rather than individuals),..The
Coons team hoped that a successful constitutional theory could be created out of
the Supreme Court’s already expressed concern about wealth discrimination in
the provision of other fundamentally important matters—like the right to vote,
the right to obtain a divorce, or the right to mount a criminal appeal.61
Hal Horowitz, in developing the principle of geographic uniformity, turned to a different
area of the law. Horowitz argued that school spending within a state should not vary based upon
geography. He drew an analogy to state laws governing murder and other crimes that were
uniformly enforced. However, as opposed to Wise’s advocacy of uniform per-pupil spending
statewide, Horowitz proposed that a legislature might decide to allocate greater revenues for

24
disabled or at-risk students. If there happened to be more of such students residing in one district
than another, then more moneys per-pupil would be targeted. Under his proposal such a situation
would be acceptable given that discrepancies in allocation were based upon need not geography.62
Minorini and Sugarman have drawn attention to legal theorists of this period who found
the principles presenting in the evolving conceptualization of educational finance ill suited for
their purposes. These advocates maintained that the primary focus of funding programs should be
on unequal students needs, especially those of low-achieving students from the lower socio¬
economic strata. It was an imperative, not a legislative discretionary initiative, to provide greater
resources for this population. The needs based constitutional claim reflected a vertical equity
concept; essentially, poor children had a right to have their needs equally met.63 The central
difficulty within this conceptual framework, noted by Minorini and Sugarman was “[h]ow much
spending does any child, or class of child ‘need’? If ‘need’ implies a level of school spending
necessary to achieve some sort of educational ‘outcome’ standard, then what outcome? And if
‘need’ is not about outcomes, what does it involve that a court could address?”64 Although these
considerations would present most prominently in the reorientation from equity to adequacy
marked subsequently in this study, they have presented as ubiquitous issues in educational
finance litigation as courts struggle to delineate standards and in some instances dictate remedies
for constitutional infirmities.
While this brief provides an extensive account of educational finance litigation, the
judicial profile and a consideration of the implications thereof subsequently in the text, a
truncated overview at this juncture serves to illuminate the context and theoretical appreciations
of school finance. The federal response to nascent funding initiatives targeted at the courts is
distinguished by three cases. In Mclnnis v. Shapiro.65 a case heard in a United States District
Court and affirmed by the Supreme Court,66 plaintiffs in Illinois challenged a funding scheme as
unconstitutional as it permitted wide variations in spending per-pupi! and failed to base
allocations on educational need. In dismissing the Fourteenth Amendment suit, the district court,

25
while acknowledging wide variations in revenues, found that they were not invidious or arbitrary.
Additionally, the opinion marked the state provision of a per-pupil minimum while ruling that
under the Fourteenth Amendment no requirement as to equal expenditures presented. The court
asserted that the funding of public schools and the particulars of same was properly the province
of the legislative bodies. A contemporary federal case in Virginia came to essentially the same
conclusion. Addressing a Fourteenth Amendment claim, the district court in Burruss v.
Wilkerson,61 rendered that:
The existence of such deficiencies and differences is forcefully put by plaintiffs
counsel...we do not believe that they 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...we can only see to it that
outlays to one group are not invidiously greater or less than that of another...no
such arbitrariness is manifest here.68
The questions raised in these early cases reflect the difficulty these judicial bodies had in
the absence of empirical data that could speak directly to distinct educational deficiencies.
LaMorte has noted that a state case in California, Serrano v. Priest,69 overcame that hurdle
writing that:
[It] provided the court with judicially manageable standards which had been
missing in Mclnnis and Burruss. In this case, the plaintiffs attempted to
demonstrate that the California method of financing public education allowed
substantial disparities among the various schools districts in the amount of
revenue available for education, thereby denying students equal protection of the
laws under the United States and California constitutions.70
In the trial court,71 plaintiffs argued that the California public education funding methodology
violated the Equal Protection Clause of the 14th Amendment “because the amount of money spent
per-pupil varies from one district to another according to the wealth of a pupil’s parents and
districts in which he resides, not according to his educational needs.”72 However, the court in
finding for the state asserted that the equal protection rubric did not ‘'require that the school be
uniform as to the quality of education or money spent per pupil.”73 On appeal, the case reached
the California Supreme Court in 1971.74 The state's high court found a judicially quantifiable
standard in fiscal neutrality. In reversing the trial court’s ruling, the supreme court determined

26
that the methodology the state employed to fund education could not be a function of property
wealth, a holding structured on the theoretical underpinnings proffered by Coons, et. al.; the
principle of wealth neutrality defined as:
[T]he concept by which each school district’s funding is dependent only upon the
district’s efforts which would be totally independent of its wealth or ability to
pay...this concept as having each school district able, via the distribution
formula, to obtain the same revenues per weighted pupil provided that each
school district make the same effort.73
According to the court, the reliance upon local property wealth discriminated against the poor and
thus stood in violation of both the federal and state constitutional equal protection demands. As
Russo has marked, the opinion not only condemned a system based on local property wealth but
also charged that the state initiatives to introduce a modicum of equity actually acerbated the
discrepancies.76 In addition, citing both federal and state constitutions, the California court held
that education was a fundamental interest to both individuals and society, marking its universal
relevance, the fact that it was compulsory, the integral role it play ed in free enterprise democracy,
and length of the time span over which it was provided as per state mandate.77 In a novel legal
interpretation, the court found that wealth presented as a suspect class, rejecting the state’s claim
that suspectedness only concerned individual wealth, stating that:
[T]o allot more educational dollars to the children of one district than to another
merely because of the fortuitous presence of property is to make the quality of a
child’s education dependent upon the location of commercial and industrial
establishments—surely this is to rely on the most irrelevant of factors as the basis
for educational factors.78
Wood has detailed the ramifications of this landmark case, writing that:
First, Serrano proved that the meaning of equal educational opportunity could be
so sweeping as to include education finance. Second, Serrano proved that states
could be vulnerable to constitutional attack, even though the federal courts had
been unassailable. Third, under state provisions Serrano successfully established
all three claims of fundamentality, wealth suspectedness, and equal protection.
Fourth, Serrano had an immediate and profound effect, sparking dramatic reform
of state aid distribution formulas in many states. Finally, Serrano compelled the
flurry of reform both through legal standards and by the court’s view on how
inequity might be redressed.79

27
The legal framework constructed by the California Supreme Court in Serrano I was soon
evidenced in a federal district court in Texas, setting the stage for the third federal case within
which the final federal issues in reference to education finance were determined. In Rodriquez v.
San Antonio Independent School District,*0 the court utilized the analysis employed in Serrano I,
in striking down the educational funding scheme in the state of Texas, determining that it was
constitutionally infirm in reference to the Fourteenth Amendment. While directing state officials
to change the taxing and financing system to comply with equal protection demands, the district
court stayed its order for two years to give the legislature the time to change the funding scheme
so that educational opportunities were not “a function of wealth other than the wealth of the State
as a whole.”81
On appeal, the Supreme Court reversed the lower court in favor of the state in Texas in
the landmark case, San Antonio Independent School District v. Rodriquez.82 In a five to four
decision that upheld the Texas education financing scheme, the Court rejected the plaintiffs’
claims that the system was discriminatory because per-pupil expenditures demonstrated an
inverse relationship to the wealth of a student’s district. Although noting that the distribution
system was flawed, the Court opined that it was permissible as it encouraged local control, a
structural and administrative dynamic that the opinion considered a valid public policy.
Addressing the proposed presence of a suspect class, the ruling noted that wealth discrimination
in prior cases had been confined by the judiciary to personal wealth and as such, the class in the
instant action did not merit special protection.83 The Supreme Court also declined to accept the
argument that education was a fundamental right. The plaintiffs had premised their claim of
fundamental ity on the relationship of education to other “extant fundamental rights in an effort to
establish a clear nexus...in concept public education was inextricably tied to other existing
fundamental rights wherein the intelligent exercise of the right to vote and the right to free speech
were said to depend on education.”84 The Court responded that:

28
The key to discovering whether education is “fundamental” is not to be found in
comparisons of relative societal significance of education as opposed to
subsistence or housing...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 or implicitly by the
Constitution...the undisputed importance of education will not along cause this
Court to depart from the usual standard for reviewing a State’s social and
economic legislation.85
Justice Powell spoke to a “slippery slope” in the majority opinion noting that if some
level of education were considered to be essential for the exercise of political rights under the
Federal Constitution similar arguments could be made that “the ill-fed, ill-clothed, and ill-housed
are among the most ineffective participants in the political process.”86 Absent the presence of a
suspect class and/or a fundamental right the Court applied a rational relationship test in its
treatment of an equal protection charge; an exercise that compelled the Court to hold that the
state’s desire to maintain a degree of local control and educational autonomy met the standard.
The decision marked that the Equal Protection Clause did not require “absolute equality or
precisely equal advantages.”8' Rebell has observed that the ruling in Mclnnis,88 which
emphasized the lack of “discoverable and manageable standards,” formed an important backdrop
for the decision in Rodriquez.89 The Court referenced the analytical quandary, stating that:
Even if it were conceded that some identifiable quantum of education
is...constitutionally protected...we have no indication that the present levels of
educational expenditure in Texas provide an education that falls short...[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.90
The Court demonstrated a reluctance to intrude upon an area traditionally consigned to
the states, particularly in a judgment factoring a conceptual appreciation of local control. Justice
Powell, who penned the opinion, stated that:
The consideration and initiation of fundamental reforms with respect to state
taxation and education are matters reserved for the legislative processes of the
various states, and we do no violence to the values of federalism and separation
of power by our hand. We hardly need add that this Court’s action today is not to
be viewed as placing its judicial imprimatur on the status quo...certainly
innovative new thinking as to public education, its methods and its funding, is
necessary to assure both a higher level of quality and greater uniformity of

29
opportunity. These matters merit the continued attention of the scholars who
already have contributed much by their challenges. But the ultimate solutions
must come from the lawmakers and the democratic pressures of those who elect
them.9’
The Court also expressed concern with the larger implications of the decision, speculating that if
the lower court’s ruling were upheld it could lead to “an unparalled upheaval in public
education,”92 and that there was no way of predicting “the consequences of massive change in the
financing and control of public education.”93 Heise expanded upon this reasoning, observing that:
The Rodriquez Court was concerned about the potential impact of the result
urged by the plaintiffs in the nation’s school systems. Twenty years earlier in
Brown the Court ruled school segregation unconstitutional. In the decades that
followed Brown the Supreme Court as well as many other federal courts
struggled with the implementation and remedial aspects resulting from Brown.
No doubt mindful of the judicial effect on the school desegregation issues, the
Court in Rodriquez noted the implications of a decision that would effectively
abrogate school finance systems operating in virtually every state, thereby
affecting most of the nation’s public schools as well as the relationship between
federal and state power.94
The Rodriquez decision effectively closed the door to school finance challenges grounded
on a federal equal protection claim. Yet, subsequent federal rulings have generated a
consideration of a possible federal role in the future. Thompson has posited that “although
Rodriquez has been commonly believed to represent an unassailable posture among federal
courts, these cases suggest that a different perspective may be possible.”95 In a case from Texas96
addressing the rights of children of illegal immigrants to access public education, the Court cast
education as a quasi-fundamental right that was due an intermediate standard of scrutiny ; an
analysis that generates from within the rigid dichotomy between the rational relationship test and
the application of a strict scrutiny standard.97 Of this measure, Nowak has suggested that:
The standard of review of these cases eliminates the strong presumption of
constitutionality that exists under the rational basis standard of review but it
allows the government to employ a...classification so long as it is a reasonable
means of achieving substantial government ends and not merely the arbitrary
classifying of people... ,98
The Plyler Court wove a broader appreciation of education from the federal perspective, writing
that:

30
Education provides the basic tools by which individuals might lead economically
productive lives to the benefit of us all. In sum, education has a fundamental role
in maintaining the fabric of our society. We cannot ignore the significant social
costs borne by our Nation when select groups are denied the means to absorb the
values and skills on which our social order rests...[and that] Public education is
not a “right” granted to individuals by the Constitution. But neither is it merely
some governmental “benefit” indistinguishable from some other forms of social
welfare."
Reflecting on Plyler, and the implications of the ruling, Thompson has commented that:
While fundamentality and differential treatment related to funding disparities
have either failed or been incompletely addressed, Plyler further called into
question the previous assumption of a deaf federal ear...in terms of
fundamentally, equal opportunity and equal protection, Plyler suggests that
issues before the Court may simply be as yet undefined rather than intractably
drawn.100
In Papasan v. Allainm the Court addressed a legal challenge to the distribution of
revenues in Mississippi generated from Section 16 land income.102 Plaintiffs cited the disparities
presenting in the system, construing them as violative of the Equal Protection Clause. Reversing
the Fifth Circuit, the Court remanded the case finding that the discriminatory nature of the
allocations, absent a legitimate state interest was sufficient to state a cause of action. The opinion
remarked that “[t]his case is very different from Rodriquez where the differential financing
available to school districts was traceable to school district funds available from local real estate
taxation, not to a state decision to divide state resources unequally among school districts.”103 In a
concurring opinion, Justice White commented that “as Rodriquez and Plyler indicate, this Court
has not definitively decided whether a minimally adequate education is a fundamental right and
whether a statute alleged to discriminatorily infringe that right should be accorded heightened
equal protection review.”104 Wood has noted that “Papasan is...important for what it stated and
what it failed to state...a glimmer of federal interest in education finance was seen on remand, as
the court noted that unreasonable government action would be scrutinized.”103 Thompson writes
of the case, that although it did not “provide a full text of the federal question, it clearly indicated
some limited federal protection for education as the court ruled that equal protection at least
extends to unreasonable governmental action.”106

31
A subsequent federal case, Kadramas v. Dickinson Public Schools,'01 considered the
argument that a district policy that charged students for bus service was a denial of equal
protection because the plaintiff student was wealth -disadvantaged. In a ruling reflecting
indeterminateness regarding fundamentality, the Court held for the defendants denying the
fundamentality argument, yet pointing out that there were variances and exceptions that preclude
absolutism in interpreting Rodriquez. The dissenting opinion emphasized that:
The Court...does not address the question of whether a state constitutionally
could deny a child access to a minimally adequate education. In prior cases this
court explicitly has left open the question whether such a deprivation of access
would violate a fundamental constitutional right. That question remains open
today.108
Considering the federal challenges, Thompson observed that:
[T]he Court has stated that if funding disparities can be related to a minimum
level of education required for the exercise of other constitutionally established
rights, it may be possible to successfully argue a case for fundamental ity... any
plea for a fundamental right to an education in the absence of a final
determination that education is of itself a fundamental right must be constructed
by drawing an indivisible link between education and other rights based in
individual and collective liberties...fof a future federal role] first, education as a
fundamental right remains a viable although ill-defined concept. While most
heightened scrutiny claims, including wealth suspectedness, have been rejected,
Rodriquez has left open the door to other issues, especially educational
deprivation. Secondly, Plyler has established that total educational deprivation
calls for some measure of heightened scrutiny based on denial of access to other
rights. Third, the concept of nexus to fundamental rights points to a need to
strictly define deprivation on less than an absolute scale.109
In a review nearly fourteen years subsequent to Thompson’s critique, Wood noted seven points
from the federal judiciary' history. He wrote that:
First, it can be gathered that the Supreme Court is sympathetic to the problems of
judicially manageable standards. Second, the Supreme Court is quick to uphold
legislative prerogative. Third, the Supreme Court is reluctant to declare education
a fundamental right, and any reversal is not likely to occur lightly. Fourth, the
Supreme Court is not yet willing to create new suspect classifications. Fifth, in
the case of education, the Supreme Court has narrowly interpreted equal
protection to mean racial equality or, alternatively, to mean absolute deprivation
which has fiscal overtones. Sixth, Rodriquez has been the controlling precedent
in subsequent litigation, and the Supreme Court itself has utilized Rodriquez to
reject further assaults on a federal educational right. But seventh, all assaults
following Rodriquez have been narrowly drawn, and it is clear the Supreme
Court holds an undefined interest in education that may eventually emerge.110

32
Beyond these federal considerations, within the scope of education finance litigation
commentators have pointed to three distinct “waves” of court decisions.111 The first wave
addressed the issue through the Federal Constitution; an approach illustrated in the
aforementioned Serrano, Rodriquez, Mclnnis, Burruss, Papasan, and Kadramas cases. The
second wave, ushered in with the Robinson v. Cahill'12 case from New Jersey, witnessed the shift
to a two prong legal strategy; targeting both state and federal equal protection clauses and state
constitutional education clauses. The third wave has generally been demarcated from 1989
onward with the Rose v. Council For Better Education, Inc.113 case from Kentucky. It has been
characterized by a narrower focus on the educational clauses of state constitutions and an
evolving legal tack toward the question of adequacy as opposed to equity concerns.
The first wave of cases was premised on the understanding that the financing schemes in
question were violative of the Equal Protection Clause of the Fourteenth Amendment. Heise has
noted two judicial dynamics which made this approach plausible, writing that:
First, the U.S. Supreme Court’s interpretation of the Fourteenth Amendment
changed significantly during the 1950s and 1960s. In the process, the Court
developed the Equal Protection Clause into a tool that could significantly
influence public policy. Second, the Court recognized education’s importance not
only to the individual but to society.114
As Enrich has pointed out, although the Court in Brown did not specify education as a
fundamental right, its description of the importance of education became a “veritable rallying
cry.”115
Legal strategies targeted at equal protection claims were grounded in a gradual
redefinition of the clause in a series of cases that although not specifically addressing education,
would present as a foundation for a court challenge.110 Calling it a virtual revolution in the
Court’s treatment of the Equal Protection Clause, Enrich commented that in the 1950s and 1960s
“in a range of disparate fields, the Court during this period found the Equal Protection Clause a
powerful weapon for attacking important and well-entrenched elements of the established
political order...the Court crafted a tool v/hose promise as an instrument of social change

33
appeared vast....”117 The Brown decision and subsequent school desegregation cases broadened
both the scope and promise of equal protection. Further, equal protection claims came before the
Court that addressed distinctions based on wealth; particularly those cases that challenged states
to ensure that criminal defendants could not be prevented due to financial circumstances from
availing themselves of protections provided by the criminal justice system, in Griffin v. Illinois,118
the Supreme Court ruled that the right of appeal could not be impeded by an inability to afford the
cost of a trial transcript; such an action evidenced wealth discrimination. Also referencing wealth
discrimination, in a ruling encompassing fundamental rights and statutes presenting as
constitutionally infirm, the Court invalided the poll tax in Harper v. Virginia Board of
Education19 Considering the expansion of the scope of equal protection, Enrich noted that:
The school integration cases were concerned with discrimination that was the
product of deliberate governmental distinctions based on race. The wealth
discrimination cases made clear that the Equal Protection Clause also limited
governmental policies and requirements that, while facially not drawing
distinctions among classes, had the effect of denying opportunities to one class
that were available to others...this line of cases reinforced the Equal Protection
Clause’s appeal to critics of property wealth based systems of education
funding.120
A conspicuous characteristic of the wealth discrimination rulings was that the financial
circumstances were individualized, while in education finance litigation, variations in resources
reflected the larger community where the student resided. This body of cases also concerned an
absolute deprivation, while in the education cases, the ramifications of state initiatives arguably
resulted in a relative deprivation, gauged according to a diminution in the quality or quantity of
education.121
In addition to desegregation cases and actions challenging wealth discrimination,
legislative reapportionment actions contributed to the redefinition of equal protection. In Baker v.
Carr,'22 the Court struck down a Tennessee reapportionment scheme that resulted in the
debasement of the plaintiffs votes and found that this denial of equal protection, resulting from
accidents of geography and arbitrary boundaries constituted a justifiable cause of action. With

34
similar legal reasoning, the Court in Reynolds v. Sims,'13 held that the Equal Protection Clause
demanded substantially equal legislative representation for all citizens in a state, regardless of
where they resided. A case analogous in that it concerned geographic discrimination, Shapiro v.
Thompson,124 witnessed a Court ruling in favor of indigents who had exercised their right to
travel from one state to another, but then were denied welfare in their new state of residence.
Minorini and Sugarman have noted that for school finance reform advocates “if restricting the
access of the poor to welfare based upon where they lived was illegal, then perhaps provision of
inferior education to the poor based upon where they lived would also be illegal.”1^5 For Enrich,
“these cases suggested that neither absolute deprivation nor individual impact were prerequisites
to rigorous equal protection review,” and for school finance reform strategists the one-man one-
vote doctrine articulated in Baker “disclosed in the Equal Protection Clause a right to all citizens
to mathematically equivalent treatment, regardless of the district which they resided.”126 Enrich
also suggests that there was another factor that compelled early education finance equity
advocates to seek remedy in the Federal Constitution. He cites civil rights activists and the anti¬
poverty community as critical, supportive constituencies, writing that:
For both of these communities, during the relevant period, the establishment of a
constitutional foundation for the rights of the poor to government services and
protections was an important objective...the most plausible source for such a
constitutional right, at least under the federal Constitution, was the recognition of
wealth as a suspect class within equal protection analysis. Disparities in
educational opportunities offered a fertile ground on which to cultivate such a
recognition.127
Wood has observed that “[tjhese strands were actually an expression and extension of judicial
sympathy to a fairly liberal construction of the meaning of equality that had already resulted in
the establishment of certain fundamental rights under the law.”128 According to Phillip Kurland,
these rulings, and the legal concepts therein, were soon cast into an education context as litigants
sought to establish suspect class and fundamentality for equal protection analysis.129
Despite the promise of these philosophical and judicial antecedents, the Rodriquez
decision effectively prevented any successful federal challenge. Wood has marked that:

35
If neither a fundamental right or a suspect class was established, failure was
assured because the doctrine of limited federal powers given the Tenth
Amendment’s silence regarding education would release the coveted claims of
federal protection; failure of a federal case meant that equality of educational
opportunity would either be lost or turned to the states without the power of the
Federal Constitution. Thus, from a historical perspective, the thinking of the early
education finance scholars was clear, if not flawed in the reality of the
overwhelming complexity of the question.130
Yet, it cannot be ignored, as Enrich pointed out “how close this strategy came to success, nor how
very different both the legal and educational worlds, and indeed the entire world of state-local
relationships and of municipal services delivery, would now look if one justice had voted the
other way in Rodriquez .”131
While cognizant of the aforementioned, albeit slight, possibility of a future federal stage,
plaintiffs turned to state courts and have overwhelmingly confined their actions to this realm.
Robinson‘12 in New Jersey was one of the initial cases employing this course and demonstrated
the potential success of focusing on a state constitution’s education clause or article. Ushering in
the second wave of educational finance litigation, the ruling was grounded solely on the language
of the New Jersey State Constitution. Although the oral arguments in Robinson occurred before
the Rodriquez decision was announced, the New Jersey Supreme Court acknowledged that, with
Rodriquez, the Federal Constitution did not apply to challenges to state school finance systems.
While making note of funding disparities, the court failed to conclude that the demonstrated
variances stood in violation of the state’s equal protection demands. Further, the opinion declined
to cast wealth as a suspect class, opining that “if this is held to constitute classification according
to ‘wealth’ and therefore ‘suspect,’ our political structure will be fundamentally changed.”133 Nor
did the court find that education was a fundamental right. The state high court pointed out that the
Supreme Court had never reached such a determination, even in the Brown case; in fact the court
maintained that Brown pointed in the opposite direction, having declared education an important
state and local function.134 Despite these qualifications, the court did rule that the state’s funding
scheme failed to meet the state’s constitutional burden. The educational clause135 required the

36
provision of a “thorough and efficient” system of public education and the requirement was not
met given that the system evidenced the lack of financial equalization. Referencing the funding
disparities, the court marked that it could not rule otherwise “unless we were to suppose the
unlikely proposition that the lowest level of dollar performance happens to coincide with the
constitutional mandate and that all efforts beyond the lowest level are attributable to local
decisions to do more than that State was obligated to do.”n6 Considering the case which
reoriented the focus of education finance litigation, Heise noted that:
Despite a major defeat in the Supreme Court...the New Jersey Court in Robinson
demonstrated the amenability of state constitutions and that an equity approach
could succeed in state court. Education clauses, alone or in conjunction with
claims rooted in state equal protection clauses, provided a valuable tool to
invalidate school finance systems and reduce per-pupil disparities.137
Wood and Thompson have suggested that “state constitutional language may enable
plaintiffs to secure success far beyond the potential ever envisioned by plaintiffs through a federal
judiciary system.”138 In consideration of this dynamic, Utter has observed that the Federal
Constitution is one of limited powers. The federal government can only do those things explicitly
or implicitly specified in the document. By contrast, state constitutions are essentially limitations
on otherwise unlimited power; they may do anything that is not prohibited by the federal or state
constitution. In addition, he marks that they are much more political in that they may be easily
amended and that they often protect individual rights such as the right to education, that are not
guaranteed by the Federal Constitution.139 The Supreme Court has determined that a state court is
free to use its own approach of analysis and to find that state provisions provide greater protection
to individual liberty. The Court opined in Oregon v. Hass,uo that “a state is free as matter of its
own law to impose greater restrictions...that those this Court holds to be necessary....”141 And in
a manner not available at the federal level, the people of a state have the opportunity to make
timely choices about fundamental matters of constitutional law.
Most state constitutions do not contain an equal protection clause that is as explicit as the
Federal Constitution. Instead they contain provisions for guaranteeing equality that have the same

37
effect as the federal clause.142 Thro has categorized state court’s analysis of these equality
guaranty provisions, writing that:
First, some state courts follow federal equal protection doctrine without
deviation. Second, other state courts use the federal levels of scrutiny framework,
but have developed their own independent analysis as to what constitutes a
fundamental right or suspect classification. Third, a few state courts reject all
aspects of the federal approach and develop their own independent, framework
and analysis.143
Providing another avenue for education finance reform advocates, all state constitutions
contain provisions compelling the state to create and maintain public school systems. Addressing
their legal utility, Heise has observed that:
Reformers find education clauses particularly attractive because they make it
easier for some courts to reach the results reformers seek. State education clauses
directly addresses states educational duties...[while] school finance decisions
rooted in state education clauses pose fewer implications for other areas of the
law than similar decisions involving state equal protection claims.144
State educational clauses can in combination with the state’s equal protection demands buttress a
challenge to a funding scheme on an equal protection claim in that it can validate the
characterization of education as a fundamental right. Or as evidenced in Robinson, the
educational provision can stand alone as a constitutional standard by which to scrutinize an
educational funding system; independently employing the education clause to demonstrate a
requirement for some degree of equity. The nature and timbre of a state’s education clause can
dictate the legal tack employed by reform advocates, and as Wood pointed out “chances for
success depend upon the courts' analysis of the state constitutional framers intent, the inclinations
of each state court, persuasive litigation from other states, and the strength of language of the
state education article itself.”145
Assessing state constitutions’ education clauses, Grubb proffered a categorization scheme
that marked four classes:
1. Weak clauses that simply call for the establishment and maintenance of
public schools;
2. Clauses that emphasize a quality component, i.e., “thorough and efficient;”

38
3. Clauses which call for advancing education by “all suitable means” and
contain purposive preambles;
4. Clauses which term education “paramount” and impose soecific duties on the
state.146
Thro has also provided a framework with which to consider education clauses:
1. Category I—impose a legislative duty which is met by simply establishing a
public school system;
2. Category II—require that the system be of a specific quality or have some
characteristic such as “uniformity;”
3. Category III—go beyond the specific quality level of Category II and set up
the school system for a specific purpose;
4. Category IV—education is considered to be a “primary,” “fundamental,” or
“paramount” duty of the state legislature.147
McUsic has broadened the appraisal of education clauses to address those that she
proposes speak to claims of equity as opposed to those which specify minimum standards. Noting
education articles that require equity, the author points to that of Montana’s constitution which
compels the provision of “a system of education which will develop the full educational potential
of each person. Equality of educational opportunity is guaranteed to each person of the state.”148
Also included in the equity category are those clauses which speak to “uniformity,” “thorough
and efficient,” or “efficiency,” in addition those which do not specify an equity standard. Of the
later, McUsic cites Alaska’s education demand which states in part that “[t]he legislature shall by
general law establish and maintain a system of public schools open to all children of the
State....”149
The second group in McUsic’s classification scheme address minimum standards.
McUsic marks those education clauses which specify an explicit and significant standard, such as
Illinois’ which proclaims “[a] fundamental goal of the People of the State is the educational
development of all persons to the limits of their capabilities. The State shall provide for an
efficient system of high quality educational institutions and services.”1’0 Others set less explicit
standards, while still providing for a considerable modicum of quality, such as the Kansas clause
which compels the legislature to “provide for intellectual education, vocational and scientific
improvement.”151 Of those educational clauses which are less rigorous, McUsic writes “[t]he

39
provisions in this grouping can be further divided into two categories; those that provide a
detailed and expansive standard of education, but limit the state’s obligation to 'encouraging,’
■promoting,’ or ‘cherishing’ that standard; arid those that provide merely for an ‘adequate’ or
‘sufficient’ education.”152
The inherent latitude, both in state educational clause language and subjective
interpretations have presented both opportunity and impediment to reform advocates. Second
wave decisions overall have presented a decidedly mixed record, owing in no small measure to
the fact that state courts could interpret identical or nearly identical constitutional language and
reach radically different results.153 In light of the nature of these articles, Julie Underwood asserts
that any attempt at categorization is “not particularly useful” given that they “are reliant on the
state’s constitutional history and the judiciary’s own method of interpretation.”154 Considering
this era of education finance litigation, Wood has identified the emergence of “significant
features” in light of the overall dynamics, commenting that:
First, the supreme courts in a number of states have declared that education is a
fundamental right based on the state constitution. Second, based on the state
constitution, there are many states in which the highest court has declared
education is not a fundamental right. Third, due to strict scrutiny sometimes
being applicable, there has been no perfect pattern in which establishing
fundamentality has automatically invalidated a state finance distribution formula
by virtue of invoking coveted strict scrutiny...Fourth, the harshness of this reality
has been somewhat softened by the logic of Robinson, as several state supreme
courts have ruled for plaintiffs by finding equality a requirement, even absent the
one feature of fundamentality that would invoke strict scrutiny analysis.155
Within the educational finance litigation context, recent actions have been premised on
the argument that the aid distribution system is fiscally inadequate.156 Of this evolution, Thro has
opined that “[ajlthough each wave had profound implications for American education, the most
significant wave, in terms of cases, number of plaintiffs’ victories and amount of substantial
change is the current.. .wave of cases.”157 Odden and Picus noted that the strategy in this third
wave of cases shifted to an explicit focus on the substantive demands of education clauses, and “it
is this strategy that led to the actual term ‘adequacy’ and its definitions in school finance litigation

40
in the 1990s and early twenty-first century [sicj.”! j8 fhe first two waves in school finance
litigation generally sought an equitable situation whereby the disparities in per-pupil spending
would be reduced. In contrast, Thro remarked that in replacing the traditional equity concerns, the
adequacy decisions target the sufficiency of school spending and are premised on the belief that
“all children are entitled to an education of at least a certain quality and that more money is
necessary to bring the worst school districts up to the minimum level mandated by state education
clauses.”159 Adequacy decisions highlight the differences in educational quality rather than a
quantitative measurement of resources provided. Referencing this trend, Heise wrote that:
As a result, adequacy decisions challenge school finance systems not because
some districts spend more money than others, but because the quality of
education in some districts (not necessarily the financially poorest ones) fails to
meet a constitutionally required minimum. The emergence of adequacy court
decisions, thus, signals an important change in school finance litigation and
illustrates a decidedly different approach by those using the courts to reform
school finance.160
Minorini and Sugarman have pointed to Robinson and Seattle School District v. State,161
from Washington in 1978 as antecedents to the 1990s adequacy cases, although the term
“adequacy” was never mentioned in these cases.162 Other scholars have suggested that Helena
Elementary School District No. 1 v. State,163 from of Montana and/or Pauley v. Kelly,164 from
West Virginia may merit citation as the earliest instances of action structured upon an adequacy
argument.165 A case clearly within the realm of adequacy decisions and the first to definitively
demonstrate the promise of the adequacy theory is Rose v. Council for Better Education.166
In 1989 the Kentucky Supreme Court rendered its decision in Rose, not only finding the
state’s public education financing scheme infirm, but also holding that the entire educational
system was violative of the state’s constitution. Addressing the school system’s governance,
curriculum, and administration, the court stated:
Les there be any doubt, the result of our decision is that Kentucky’s entire system
of common schools is unconstitutional. There is not allegation that only part of
the common schools is invalid, and we find no such circumstance. This decision
applies to the entire sweep of the system-—all its parts and parcels.167

41
In a case that was initiated on a fiscal neutrality argument, the court decision broadened the scope
of the challenge to embrace the issue of adequacy.168 The state high court conduced that the
state’s most affluent districts were inadequately funded when referenced against “acceptable
national standards.”’09 The decision pointed to academic indices demonstrating that in terms of
student achievement, Kentucky placed well below neighboring states, i.e., nearly twenty-one
percent of ninth graders failed to graduate from high school. Admonishing the state, the majority
declared “Kentucky’s schools are underfunded and inadequate...[and] are ranked nationally in
the lower 20-25% of every category that is used to evaluate educational performance.”170 Beyond
lamenting the provision of public education, the court moved to detail seven “essential
competencies” that a constitutionally mandated uniform and adequate system would develop in
students.171
Alexander has detailed the precedential implications of Rose, observing that the decision
expanded the discussion of what constituted an adequate education. Considering the judicial,
political and ideological scope of the adequacy decision, Alexander commented that:
First, the court set the boundaries in the separation of power between legislative
prerogative and judicial responsibility...[asserting] a limited but certain judicial
role in delineating the affirmative constitutional obligations...Second, the court
acknowledged and established the fundamentality of education...[and framed]
the fundamentality of education as a simple and obvious fact...Third, the court
gave form and substance to the education provision of the Kentucky Constitution
and firmly established its importance as a standard to which the legislature must
adhere. Fourth, the court showed a willingness to interpret substantively to the
detail of the education clause of the Kentucky Constitution by holding that an
“efficient system” of public schools required equality of opportunity’. Finally, the
court justified the appropriateness and efficacy of striking down the entire system
of education, rather than merely invalidating selected offending school funding
statutes.172
Rebel! has observed that the decision articulated “the types of basic skills that student would need
to develop in order to participate effectively as citizens in a democratic society and to be prepared
to compete in the contemporary economy.”173 Yet, as striking as the Rose decision was the case
and its resolution in and of itself does not account for the apparent shift from a traditional equity

42
iegal strategy to one premised upon adequacy. Exhibiting no lack of contributors, the literature
addresses that dy namic from a number of perspectives.
Enrich suggested that equality arguments in the context of educational finance suffered
from two fundamental weaknesses. First, equity is not as simple and clear cut as may have been
presumed. He notes that “the very idea of equality evokes the imagery of simple quantitative
comparisons... [yet] in the context of education funding, the imagery has proven
deceptive...because the appropriate dimension for comparison has proven elusive.”174 Enrich
maintains that measures of fiscal capacity have failed to demonstrate a close connection to
demonstrable educational consequences that discriminate between children. However, measures
that move away from calculations such as property value per-pupil to qualitative considerations
of other educational inputs or outcomes can prove just as problematic. Yet, he speculates that “the
supposed simplicity and certainty of the concept of inequality threatens to be overwhelmed by
substantive controversies with which both courts and legislatures are justifiably
uncomfortable.”173 While citing that appeals to the facilitation of equal treatment by the
government has an innate appeal, Enrich notes that in application it can face significant
opposition. He points to affluent districts, for which equalization programs appear to threaten to
restrict the resources and services they can offer; this in addition to the suspicion that in the
design to improve poorer districts, they will disproportionately bear the financial burden. In
essence, Enrich found that “equality of education...turns out to be in direct conflict with a cluster
of other potent interests, such as preserving control over (and in preserving the value of) one’s
pocketbook and securing the welfare of one’s own children.”176 Other concerns such a local
control, individual autonomy, and property rights prove to be power competitors for equality’s
appeal.1'7
Michael Rebell has observed that “[a]dequacy...tends to involve less political resistance
at the remedial stage because rather than raising fears of ‘leveling down’ education opportunities

43
available to affluent students, it gives promise to ‘leveling up’ academic expectations for all other
students.”178 James Ward, addressing the shortcoming of equity has offered that:
There is a massive resistance to altering fundamental arrangements in society if
there are winners and losers. The movement toward equal educational
opportunity will benefit many children and will probably benefit society as a
whole, but there will be those who do not benefit and, in fact, will perceive their
own individual situations to have worsened. These individuals may be those who
may pay higher taxes or those who may feel that their own children no longer
have the competitive advantage over other children that they may once have
had.179
Weighing this dynamic, he suggests that “in one interpretation, the attainment of adequacy says
that the elites may still have their privilege and that we must make sure that the lower classes
have an education that surpasses some threshold...[fjrom the conflict about equity emerges the
consensus as adequacy as a goal.”180 Contemplating the strategic shift, Reschovaky has written
that implementing an adequacy standard is far less likely than programs instituting equality
formulas to generate political confrontation. In addition, he maintains that that without substantial
sources of additional revenues many states may be unable to elevate all per-pupil spending to that
of the more affluent districts and that removing local control of educational investments may
seriously decrease support for education.181 The arguments speak to Cass Sunstein’s “endowment
effects;” a dynamic wherein “people place a higher value on rights and goods that they currently
hold than they place on the same goods in the hands of others.”182 Equity remedies that are
perceived to redistribute revenues lend themselves to the endowment effect of loss aversion; the
concept that a negative change from the status quo is seen as more harmful than a positive change
is seen as beneficial.183
Paul Enrich also pointed to a discouragement with the results of an equity based strategy.
Contemplating the historical record, he observed that the “mere equalization of tax capacity, or
even the significant progress some states have achieved toward equalization of school budgets,
has proven insufficient to put the educational opportunities of disadvantaged children on a par
with those of their better off peers.”184 Enrich contended that arguments for adequacy may avoid

44
many of the shortcomings of equity as it is sifted through the judicial process. He marks that
adequacy cases are based on upon the explicit text of the state’s educational clause in contrast to
equality arguments. Of these equity claims, Enrich writes that:
[They] must pass through an intermediate interpretive step. Either they must find
in the education clause the intention to elevate education to a special status that
subjects it to heightened standards of equal protection or they must find evidence
in the constitutional language of a requirement, not only to provide schools, but
provide them equally.185
Notation is also made of educational clause’s appeal to a specific sphere of governmental
responsibility, thus adequacy challenges confined to these articles do not threaten to “spill-over”
into other areas of governance. A federal court spoke to this fear in Parker v. Mandelm within a
consideration of the fundamentality of education and wealth as suspect class. In this early
educational finance action, the opinion stated:
To hold that the strict scrutiny test applies to legislation of this sort would be to
render automatically suspect every statutory classification made by state
legislatures in dealing with matters v/hich today occupy a substantial portion of
their time and attention. If the test which plaintiffs seek to apply is the
appropriate standard here, then a state, on each occasion that a similar Fourteenth
Amendment attack were made against a statute dealing with health, education, or
welfare, would be required to bear the burden proving the existence of a
compelling state interest. This Court cannot conclude that state legislatures are to
be straightjacketed by such recently evolved constitutional theory in areas that
have traditionally been the exclusive concerns of the state.187
Enrich summarily pointed to the difficulties in clarifying exactly what equality demands, its
threats to other interests and the state constitutional complexities that obscure a textual foundation
for these arguments to conclude that all account for the many cases where courts have upheld
financing schemes that were starkly inequitable.188
Addressing this reorientation, Thro has written “fijnstead of emphasizing equality of
expenditures, the plaintiffs have argued that all children are entitled to an education of at least a
certain quality and that more money is necessary to bring the worse school districts up to the
minimum level mandated by the state education clause.”189 He distinguished these “quality suits”
that depend exclusively on the education clauses of individual state constitutions from the “equity

45
suits” that relied upon the state’s equal protection clause. In the equity suits “such questions as
whether education is a fundamental right or whether the school finance system is irrational will
dominate the analysis, while in ‘quality suits’ the court must begin its analysis by determining if
the state education clause imposes a specific standard of quality....”190 Thro observes that if a
court finds the failure to meet a constitutional standard is systemwide, it must look beyond the
funding scheme, for “even if the lack of money is [sic] a cause, or even the primary cause, of the
district’s inadequacy, it is almost inevitable that there will be other non-fmancial concerns. Thus
in order to correct the inadequacy, it may be necessary to do more than restructure the finance
system.”191 Referencing the aforementioned administrative specificity of state education articles,
he concludes that “courts may be more willing to recognize a new duty under an education
clause, and as a result, more likely to recognize an adequacy standard.”197 Exploring the genesis
of adequacy strategies, Wood has noted that:
A few of these suits have emerged after the applicable state supreme court has
ruled that equity was either already met or only the legislature could define such
a concept. In a few instances, these suits essentially questioned the concept of
“equality of poverty.” That is to say, if a state aid distribution formula allocates
funds in an equitable manner, but such funds were by definition unable to meet
various educational and academic standards, such a distribution formula would
be inadequate by definition.193
Further, he marks that “in the movement toward greater educational accountability and raising
academic standards for the public schools of a given state, the legislature has, unsuspectingly,
defined by statute what makes an adequate education.”194 Deborah Verstegen has also pointed to
the “adoption and codification into law of challenging national educational goals aimed at
ambitious outcomes for all children—and subsequent standards setting movement enveloping the
states.”195 Assessing how state courts have utilized these standards. Verstegen observed that
courts have not been confined by these statistical parameters, writing that:
[T]he high courts invalidating state finance systems have found an adequate
education is defined by the “best system,” it is a “quality” system; it provides
“excellence in education,” it equipts all children with certain competences that
allow them to compete in the labor market—across the country and
internationally as well.196

46
Appraising the implications of the emerging appeal and codification of accountability and
standards, Rebell has observed that:
The standards based reform movement, which responded to a widespread
sentiment that American education was in serious trouble in the late 1980s,
provided the tools that courts needed to deal with complex education
issues...The extensive education reform initiatives most states adopted to meet
this challenge provided the courts workable criteria for developing the “judicially
manageable standards” that were necessary to craft practical remedies in these
litigations.197
According to Odden and Picus, the emphasis on standards influenced legislators in addition to
providing criteria for litigation. They noted that:
As the 1990s ended and the twenty-first century began, policymakers
increasingly wanted to know how much money was needed to educate students to
high standards; how those dollars should be distributed effectively and fairly
among districts, schools, programs, and students; and how both level and use of
dollars affected student performance. These policy demands are pushing school
finance beyond its traditional emphasis on fiscal equity.198
The standards and accountability initiative, incorporated within an adequacy challenge,
serves to address an inherent weakness in equity arguments; the inability to correlate
discrepancies in funding with inadequate educational systems. Speaking to this issue in Gould v.
Or,199 the Nebraska Supreme Court wrote that:
While appellants’ petition is replete with examples of disparity among the
. various school districts in Nebraska, they fail to allege in their petition how these
disparities affect the quality of education the students are receiving...although
appellants’ petition alleges the system of funding is unequal, there is no
demonstration that the education each student is receiving does not meet
constitutional requirements.200
Minorini and Sugarman have proffered that concerns other than equity gained a higher
national profile, suggesting the standards and accountability movement demonstrated that
attention had begun “to turn away from the problems of inequalities in school spending to the
shortcomings of public education from top to bottom... productivity importantly replaced
inequality as the salient reform object....”201
Heise suggested that adequacy arguments referencing educational funding appeal to the
norms of fairness and opportunity, and present fewer logistical, theoretical and political

47
difficulties. He observes that “[ajdequacy 'litigation seeks to assist the most troubled school
systems as opposed to the decidedly more complicated and difficult task, of reducing per-pupil
spending differences by either increasing spending (leveling up), or reducing existing spending
(leveling down), or a combination of the two.”202 In addition, adequacy decisions do not pose a
threat to local control of schools given that they “do not focus on reducing per-pupil spending
differences—a product of local property tax revenues influence on school finance systems—
thereby a direct confrontation with local control.”203 Heise accurately notes that “local control is
among the salient characteristics that distinguishes American school systems from other systems
throughout the world. Courts, particularly the U.S. Supreme Court, recognize the sanctity of local
control and agree that it is a legitimate governmental interest....”204 Also entertaining the
institution of local control, Enrich detailed its normative appeal. He commented that:
[T]he imagery of local control paints the contrast between local school district
and state in a manner reminiscent of the familiar contrasts between individual
and government, and between public and private...what is at stake is depicted as
the freedom to deploy one’s own resources for one’s own purposes and
benefit...the prospect of state-level constraints on local fiscal control raises the
fear that local autonomy over substantive education decisions will be displaced
by the dictates of a distant faceless bureaucracy.205
In accord with other scholars, Heise also noted the utility of the emerging standards, though
offering that “educational standards not only assist adequacy litigants, but standards also may
attract such litigation.”206 Proffering another strategically salient dimension, Heise holds that
adequacy evidences a greater appeal for urban districts. He found “urban districts ambivalent as
to participation in equity litigation,” citing that “data suggest that urban school systems might
actually lose financially in an effort to equalize per-pupil spending.”207 Not surprisingly, these
school districts which generally spend more than the state average would be resistant to engaging
in litigation that sought an equitable distribution of funds.
Providing yet another perspective, Minorini and Sugarman believe that early litigation to
eliminate racial segregation provides a unique insight into the emerging adequacy movement.
They noted that “the litigation strategy in the first half the twentieth century [sic] was to show

48
that the segregated schooling provided for blacks was inferior to what was provided whites and
hence in violation from the ‘equal protection of the law’ requirement of the Fourteenth
Amendment....”208 Charting an evolving legal strategy, the authors point to Cummings v. Board
of Educationâ„¢ Missouri, ex. rel. v. Canada,210 Sweatt v. Painter,211 and McLaurin v. Oklahoma
State Regents;212 actions of which they suggested “the Court’s emphasis moved away from
conventionally measured educational resources to an emphasis on ‘intangibles.’”213 This concern
with “intangibles” was accentuated in Brown, as the Court held that black elementary and
secondary school students were unconstitutionally denied equal educational opportunities, even in
those instances where the schools involved had been equalized in terms of infrastructure and
instructional staff. In setting the stage for adequacy, Minorini and Sugarman proposed that:
[Although the test of equality throughout these series of cases was always
applied to educational input differentials, over time the inputs that were
compared increasingly included those beyond mere financial resources and the
things money buys directly. In other words, the Court became increasingly
concerned with what the students were likely to gain from their educational
experience.214
Regarding school desegregation litigation of a more recent vintage, particularly that of the 1970s
and 1980s, they found that courts began to “focus primarily on ordering improvements in the
education enterprise—such as teacher quality, curriculum, facilities, and other support staff—that
were in many respects independent of student assignment related desegregation goals.”215 This in
conjunction with the fact that the courts had relaxed the assignment standards that applied to
school districts that had previously discriminated but had instituted judicially mandated remedies
presented a mixed judicial message; compelling advocates to fear a diminution in efforts to
improve educational opportunities targeted toward minority students.216 As a result, many came
to view education finance litigation targeted at adequacy as a promising, if not the only, option.217
Contemplating contemporary trends, observers traced adequacy’s emergence to a
growing dissatisfaction with the tangible outcomes of school finance equity cases even when they
were successfully litigated.218 Wood’s aforementioned characterization of an “equality of

49
poverty”2,9 speaks to those concerns, while Minorini and Sugarman also point to, as did Heise,220
the difficulties equity cases present for urban districts. Regarding these school districts, they
made note of the fact that these districts faced higher staffing costs, had a higher percentages of
students with exceptional needs and that they “had to provide so many other local services that
their tax base was not really as available to be drawn on for education as would appear from a
simple calculation of local district capacity....”221
Scrutinizing the effects of education finance litigation, William Fischel proposed that the
legislative legacy of the Serrano actions in California contributed to the passage of Proposition 13
in 1978; a state tax initiative that limited property tax rates, required a two-thirds vote of the
legislature to increase state taxes and prohibited the imposition of a statewide property tax.222
While suggesting that this “tax revolt” represented the dynamic of which they addressed as
spurring the movement toward adequacy suits, Minorini and Sugarman proposed that “the
California experiences with wealth discrimination theory unnerved many people, again leading
them to search for alternative theories.”223 They noted, as did Fischel, that as a result of the
initiative the size of government was sharply curtailed and that “rapidly California dropped from
being one of the states that spent most generously on public schools to one of the lowest.”224
Appraising these dynamics, Minorini and Sugarman concluded that “for needy children attending
high-cost, urban schools, school finance litigation would be far more attractive if it could be cast
more widely than the conventional wealth discrimination approach.”225
In 1981 Samuel Huntington in American Politics: The Promise of Disharmony226
persuasively argued that there persisted in America a gap between the promise of American ideals
and the performance of American politics and government. Compelled by a “democratic
imperative,” he proposes that the nation cyclically attempts to reconstruct its institutions to reflect
the core values of liberty, equality, individualism, and democracy.227 In contributing an analytical
framework divorced from any particular legal doctrine, Rebell incorporated Huntington's thesis
while weaving an explanation for the strategic shift from equity to adequacy. Employing the

50
conceptual framework of Huntington’s work, he argued that adequacy’s ascending currency
demonstrates:
[T]he resurgence of a powerful “democratic imperative” at the core of the
American political tradition. This democratic imperative proclaims that the
nation cannot permanently abide a situation in which large numbers of children
are denied an adequate education, and in which those with the greatest
educational needs systematically receive the fewest educational resources/'8
As clearly illuminated by the textual and normative nature of an evolving appreciation of
education finance, both in theory and administration, there is an ever-present tension between the
concerns for equality and autonomy. Addressing this dynamic in light of his contention of a
“democratic imperative” at play in education, Rebell proposes that the public was uncomfortable
with the first wave of litigation; particularly rulings such as that of Serrano which carried
fundamentality too far. At the same time, he contends that the public was just as discomfited by a
system of full liberty which countenanced the creation and maintenance of vast funding
discrepancies.229 Explaining why this struggle often presents as particularly acute, Rebell writes
that:
Education is the sector of American society in which the liberal, republican and
egalitarian ideals have been most consistently and harmoniously expressed
because schooling promises to provide all the nation’s children with an equal
opportunity to gain the skills necessary to pursue individual advancement and the
civil values required to participate actively in the democratic culture.230
In Rebell’s estimation, that these concerns in the midst of an inherent values conflict, led to an
appreciation for adequacy in lieu of equity resulted from four interrelated educational
developments; the growing sentiment that public education in America was in serious trouble and
placing the nation at a potential international competitive deficit; the awareness that the
desegregation initiatives of the 1950s and 1960s have failed to demonstrate sufficient educational
improvement among minority students; the standards and accountability movement that was
premised on the belief that given appropriate support and resources, virtually ail students can
perform a relatively high academic levels; and the awareness of the increasing social and civil
role schools were being tasked with.231 Of the later point, Rebell conceptually revisits the

51
strategic tack of plaintiffs in early educational finance litigation actions challenging funding
systems on federal constitutional grounds; attempting to establish the nexus between education
and the exercise of fundamental rights, particularly those facilitating full participation in a
democratic society. He contends that schools are now seen has having “a significant new
institutional role in transmitting the values necessary to perpetuate the democratic political
system.”232
The relationship between education and citizenship has certainly predated education
finance litigation. Thomas Jefferson pointed out that “some degree of education is necessary to
prepare citizens to participate effectively and intelligently in our open political system if we are to
preserve freedom and independence.233 Alex de Tocqueville observed that “in the United States
the instruction of the people powerfully contributes to the support of the democratic republic.”234
Just as clear, on the part of educational theorists and finance reform advocates, is the reorientation
of educational governance, administration, provision of resources and legal strategies from a
concern with equity to an embrace of adequacy. Yet, as Verstegen has noted, “the concept of an
adequate education emerging from state courts invalidating school finance systems goes well
beyond a basic minimum educational program....”235 Certainly, the proposed nexus between
education and fundamental rights has witnessed a metamorphosis in sanction within the state
judiciary; at the least it bears a strikingly indeterminate nature. Perhaps such a dynamic is
inevitable, reflecting the understanding of the Wisconsin Supreme Court which opined that “the
definition of an adequate education is not static and necessarily with change.”236 The
conceptualization of the judiciary within the context of restraint and activism and how the
principles of equity and adequacy factor into that equation mirrors this subjective and
philosophical calculation.
Notes
1 James G. Ward, Conflict and Consensus in the Historical Process: The Intellectual Foundations
of the School Finance Reform Litigation Movement, in, 24 JOURNAL OF EDUCATION FINANCE 1,2 (1998).

52
2 Roe Johns, Some Critical Issues in School Financing, in, Constitutional Reform of School
Finance 158 (K. Alexander & K. Jordan, eds., D.C. Heath, 197.3).
J James Pulliam, History of Education in America (4th Merrill, 1987).
4 Bernard Bailyn, Education in the Founding of American Society 25 (University of North
Carolina Press, 1960).
5 Paul Mort & William Reusser, Public School Finance: Its Background. Structure and Operation
(McGraw-Hill, 1951).
6 Charles Hull, ed., The Economic Writings of Sir William Petty 145 (Cambridge University
Press, 1899).
7 Earnest Johnson, The Place of Learning, Science, Vocational Training and "Art” in Pre-
Smithian Thought, in, 24 JOURNAL OF ECONOMIC HISTORY 129, 132 (1964).
8 Johns, supra note 2 at 158.
9 Allan Odden & Larry Picus, School Finance: A Policy Perspective 9 (3rd McGraw-Hill, 2004).
10Id. at 10.
11 Steve Rippa, Education in a Free Society: An American History (Longman, 1997).
12 Id. at 100.
13 Id. at 101.
14 Id. at 102.
15 Id. at 102.
16 Harpers Register of Pennsylvania Vol. 15, 8 (May 2, 1835).
17 Morton Horwitz, The Transformation of American Law. 1870-1960 20 (Oxford University
Press, 1992).
18
Ward, supra note 1 at 6.
19 Id.
20
Johns, supra note 2 at 159.
21 163 U.S. 537 (U.S. 1896).
22 Id. at 544.
23 R. Craig Wood & David Thompson, Educational Finance Law: Constitutional Challenges to
State Aid Plans—An Analysis of Strategy 5 (2nd NOLPE, 1996).
24 Id.
25 Cummings v. Richmond, 177 U.S. 528 (U.S. 1899) at 544.

53
26 See Wood, supra note 23.
2l E.P. Cubberley, School Funds and Their Apportionment (Teachers College, 1905).
28 Id. at 17.
29 Id. at 16-17.
30 Johns, supra note 2 at 161 (citing Eilwood Cubbereley).
31 Wood, supra note 23 at 7.
32 Harland Updegraff, Rural School Survey of New York State: Financial Support (By the Author,
1922).
j3 Johns, supra note 2 at 161.
34 See Odden, supra note 9 at 137.
35 Report of the Educational Finance Inquiry Commission. Yol. 1 (McMillan. 1923).
6 George D. Strayer & Roger Haig, The Financing of Education in the State of New York, in.
Report of the Educational Finance Inquiry Commission, Yol, 1 173 (McMillan, 1923).
37 Id. at 174-75.
See Wood, supra note 23 at 7.
39
Strayer, supra note 36 at 174.
40 See Wood, supra note 23 at 7.
41 Johns, supra note 2 at 163.
42 Paul Mort. The Measurement of Educational Need 6-7 (Teachers College, 1924).
43 Wood, supra note 23 at 9.
44 Henry Morrison, School Revenue 214 (University of Chicago Press, 1930).
45 Johns, supra note 2 at 165.
46 Morrison, supra note 44 at 220-21.
41 See, e.g., C.S. Benson. The Economics of Public Education IHoughton-Mifflin. 1978).
48 Wood, supra note at 9.
49 Johns, supra note at 157.
50 347U.S. 483 (U.S. 1954).
51 Supra note 20.

54
52 Brown, 347 U.S. at 492-93.
53 Wood, supra note 23 at 10.
34 Thomas Lowi, The End of the Republican Era 17 (University of Oklahoma Press, 1995); See
also, Justice Cardozo’s opinion in Helvering v. David, 301 U.S. 619 (U.S. 1937).
55 See Arthur Wise, Is Denial of Educational Opportunity Constitutional?, in, 13
Administrators handbook 6 (1965).
56 Arthur Wise, Rich Schools. Poor Schools: The Promise of Equal Educational Opportunity 197
(University' of Chicago Press, 1968).
57 Id. at 198.
58 John Coons, et. al., Private Wealth and Public Education (Harvard University Press, 1970).
59
James G. Ward, Ethics and Legitimzation of the Pursuit of Equity in School Finance, in, 23 ST.
Louis Univ. pub. Law Rev. 2 487,493 (2004).
60 Coons, supra note 58 at 304; “Proposition I” their core legal principle has come to be known as
fiscal or wealth neutrality.
61 Paul Minorini & Steve Sugarman, Educational Adequacy and the Courts: The Promise and
Problems of Moving to a New Paradigm, in, Equity and Adequacy in Education Finance: Issues and
Perspectives 181, 182 (Helen Ladd, et. al. eds., National Academy Press, 1999).
62 Harold Horowitz, Unseparate but Unequal: The Emerging Fourteenth Amendment Issue in
Public School Education, in, 13 UCLA Law Rev. 1147 (1970).
63 See Chapter 4 of accompanying text for a detailed discussion of the conceptual groundings of
vertical equity.
64 Paul Minorini & Steve Sugarman, School Finance Litigation in the Name of Educational
Equity: Its Evolution, Impact, and Future, in, 34, 36-37, supra note 61.
65 293 F. Supp. 327 (N.D. Ill. 1968).
66 Mclnnis v. Ogilvie, 394 U.S. 322 (U.S. 1969).
67 3 1 0 F. Supp. 572 (W.D. Va. 1969).
68 Id. at 574.
64 487 P.2d 1241 (Cal. 1971) [hereinafter Serrano 7].
0 Michael LaMorte, School Laws: Cases and Concepts 348 (7th Allyn and Bacon, 2002)
'1 Serrano v. Priest, 89 Cal Rplr. 345 (Cal. 1970).
72 Id. at 348.
73 Id. at 350.
74 See Serrano I, supra note 69.

55
75
" Wood, supra note 58.
76 Charles Russo, Reutter’s The Law Of Public Education 320 (5tn Foundation Press, 2004) (citing
the opinion in Serrano I).
77 See R. Craig Wood, Constitutional Challenges to State Education Finance Distribution
Formulas: Moving from Equity to Adequacy, in, 23 St. LOUIS UNIV. PUB. Law Rkv. 531, 546 (2004).
78 Serrano 487 P.2d at 1253.
79 Wood, supra note 77 at 546.
80 337 F. Supp. 280 (W.D. Tex. 1971).
81 Id. at 284.
82 41 1 U.S. 1 (U.S. 1973).
83 Id. at 27-28.
84 Wood, supra note 23 at 7.
85 Rodriquez, 411 U.S. at 35.
86 Id. at 37.
87 Id. at 17.
88 Mclnnis v. Shapiro, 293 F. Supp. 327 (N.D. Ill., 1968).
89 >
Michael Rebell, Educational Adequacy, Democracy and the Courts: The Promise and Problems
of Moving to a New Paradigm, in, Equity and Adequacy in Education Finance: Issues and Perspectives 177
(Helen Ladd, et. al. eds, National Academy Press, 1999).
90 Rodriquez, 411 U.S. at 36.
91 Id. at 54.
92 Id. at 56.
93 Id.
94
Michael Heise, State Constitutions, School Finance Litigation and the Third Wave: From Equity
to Adequacy, in, 68 Temple Law Rev. 1151, 1154(1996).
95
David Thompson, School Finance and the Courts: A Reanalysis of Progress, in, 59 WEST’S
Law Rep. 945 (1990).
96 Plyler v. Doe, 457 U.S. 202 (U.S. 1982).
97 Kern Alexander & M. David Alexander, American Public School Law (5th Wadsworth, 2001).
98
James Nowak, etl al., Constitutional Law 531 (West Publishing, 1986).
99 Plyler, 457 U.S. at 221.

56
100 Thompson, supra note 95 at 952.
101 478 U.S 202 (U.S. 1986).
102
“Section Sixteen” lands were originally introduced in the Land Ordinance of 1785. The
ordinance provided that such lands be utilized in generating funds for public education. Plaintiffs argued in
the instant case that the disparities in distribution resulting from the system’s disruption arising from the
Civil War constituted a violation of the Equal Protection Clause.
103 Papasan, 478 U.S. at 280.
104 Id. at 285 (White, J., concurring).
105 Wood, supra note 77 at 542.
106 Thompson, supra note 95 at 950.
107 487 U.S. 450 (U.S. 1988).
108 Id. at 466 (Marshall, J., dissenting).
109 Thompson, supra note 95 at 953.
110 Wood, supra note 77 at 543.
111 See, e.g., William Thro, Judicial Analysis During the Third Wave of School Finance Litigation:
The Massachusetts Decision as a Model, in, 35 B.C. Law Rev. 4 498 (1994); G. Levine, Meeting the Third
Wave: Legislative Approaches to Recent School Finance Rulings, in, 29 HARVARD J. ON LEG .(1994); J.
Underwood & W. Sparkman, School Finance Litigation, in, 14 Harvard J. L. & PUB. POE. 517 (1991).
112 303 A.2d 273 (N.J. 1973).
113 792 S.W.2d 186 (Ky. 1989).
114 Heise, supra note 94 at 1153.
115 Paul Enrich, Leaving Equality Behind: New Direction in School Finance Reform, in, 48
Vanderbilt Law Rev. 101,117(1995).
116 See, e.g., Wood, supra note 77; Lowi, supra note 53.
117 Enrich, supra note 115 at 116.
113 351 U.S. 12 (U.S. 1956).
119 383 U.S. 663 (U.S. 1966); See also, Lubin v. Panish, 415 U.S. 709 (U.S. 1974); Shapiro v.
Thompson, 394 U.S. 618 (U.S. 1969).
120 Enrich, supra note 115 at 118.
121 Id. at 119.
122 3 96 U.S. 186(1962).
123
377 U.S. 533 (1964).

57
124 394 U.S, 618 (1969).
125
Minorini, supra note 61 at 182.
126 Enrich, supra note 115 at 119-20.
127 Id. at 121.
128 Wood, supra note 77 at 533.
129
Phillip Kurland, Equal Educational Opportunity: The Limits of Constitutional Jurisprudence-
Undefined, in, 35 U. Chi. Law Rev. 583 (1968).
130 Wood, supra note 77 at 535 (internal citation omitted).
131 Enrich, supra note 115 at 128.
132 Supra note 111.
133 Id. at 283.
134 See Wood, supra note 23.
135 N.J. Const, art. VIII, § 4.
136 Robinson, 303 A.2d at 294.
137
Heise, supra note 94 at 1160.
lj8 Wood, supra note 23 at 69.
139
Robert F. Utter, Freedom and Diversity in a Federal System: Perspective on State
Constitutions and the Washington Constitution's Declaration of Rights, in, 7 U. PUGET SOUND L. Rev. 507
(1984).
140 420 U.S. 714 (U.S. 1975).
141 Id. at 719.
142 See William Karasik, Equal Protection of the Law Under the Federal and Illinois
Constitutions: A Contrast in Unequal Treatment, in, 30 De Paul Law Rev. 263 (1981).
143 William Thro, To Render Them Safe: The Analysis of State Constitutional Provisions in Public
School Finance Reform, in, 77 VIRGINIA Law Rev. 1639, 1670-71 (1989).
144 Heise, supra note 94 at 1 157-59.
145 Wood, supra note 77 at 548-49.
146 Richard Grubb, Breaking the Language Barrier: The Right to Bilingual Education, in, 9
Harvard C.r.-C.L. Law Rev. 9,52 (1974).
147
Thro, supra note 143 at 1672.

58
148 Molly McUsic, The Use of Education Clauses in School Finance Reform Legislation, in, 28
Harvard J. on Leg. 307, 320 (1991) (citing Mont. Const, art. X, § 7).
49 Id. at 325 (citing Alaska Const, art. Vil, § 1).
1,0 Id. at 324 (citing Ill. Const, art. X, § 1).
151 Id. at 325 (citing Kan. Const, art VI, § 1).
152 Id. at 336.
153 See, e.g, Olsen v. State, 554 P.2d 239 (Or. 1976) and Robinson v. Cahill, 303 A.2d 273 (N.J.
1973). Both courts addressed constitutional mandates that spoke to the provision of a “thorough and
efficient” system of education and reached opposite conclusions as to the phrase’s implications; the Oregon
court ruling that it did not speak to an equity demand, while the New Jersey court held that financing
disparities rendered the state’s funding scheme constitutionally infirm. See also, Chapter 5, accompanying
text.
154 Julie Underwood, School Finance Litigation: Legal Theories, Judicial Activism, and Social
Neglect, in, 20 Journal of Education Finance 143,150 (1994).
155 Wood, supra note 77 at 550-51.
156 See, e.g., James Guthrie & Richard Rothstein, Enabling ‘Adequacy’ to Achieve Reality;
Translating Adequacy into State School Finance Distribution Arrangements, in, Equity and Adequacy in
Education Finance: Issues and Perspectives 209 (Helen Ladd, et. al. eds., National Academy Press, 1999).
157 William Thro, Judicial Analysis During the Third Wave of School Finance Litigation: The
Massachusetts Decision as a Model, in, 35 B.C. Law Rev. 597, 598-99 (1994).
1 ÑR
Odden, supra note 9 at 38.
1 ÑQ
Thro, supra note 157 at 603.
160 Heise, supra note 94 at 1162.
161 585 P.2d 684 (Wash. 1978).
162 Minorini, supra note 64 at 35.
163 769 P.2d 684 (Mont. 1989).
164 255 S.E.2d 859 (W.Va. 1979).
165 See, e.g., Minorini, supra note 64; Thro, supra note 110; Levine, supra note 110.
166 790 S.W.2d 186 (Ky. 1989).
167 Id. at 215.
168 See Odden, supra note 9 at 39.
169 Rose, 790 S.W.2d at 197.
170 Id.

59
171 Id. at 212; See Chapter 5, accompanying text for detailed discussion of Rose.
l7' Kern Alexander, The Common School Ideal and Limits of Legislative Authority: The Kentucky
Case, in, 28 Harvard J. on Ed. 341,345 (1991).
173 Michael Rebell, Educational Adequacy, Democracy and the Courts, in, Achieving High
Educational Standards for All: Conference Summary 218. 235 (T. Ready, et. al. eds., National Academy
Press, 2002).
174 Enrich, supra note 115 at 145.
175 Id. at 150.
176 Id. at 160.
177 Id.
178 Rebell, supra note 173 at 231.
] 79
Ward, supra note 1 at 18.
180 j » , aa
Id. at 22.
181
A. Reschovaky, Fiscal Equalization and School Finance, in, Al NATIONAL Tax JOURNAL 185
(1994).
182
Cass Sunstein, The Partial Constitution 168 (Harvard University Press, 1993).
183 Id.
184 Enrich, supra note 115 at 154-55.
185 Id. at 167.
186 344 F. Supp. 1068 (D. Md. 1972).
187
Id. at 1079; See Chapter 5, accompanying text for a discussion of Parker.
188
Enrich, supra note 115 at 167.
189 Thro, supra note 157 at 603.
190 Id. at 605.
191 Id. at 608.
192 Id.
193
Wood, supra note 77 at 551 (internal citations omitted).
194 Id. at 552.
195
Deborah Verstegen, Judicial Analysis During the New Wave of School Finance Litigation: The
Adequacy in Education, in, 24 JOURNAL OF EDUCATION FINANCE 51 (1998).

60
196 id.
197 Rebell, supra note 173 at 228.
IQg
Odder», supra note 9 at 1; See also Wood, supra note 77 at 552-53 detailing adequacy studies in
North Dakota, South Carolina, California, and Oregon.
199 506 N.W.2d 349 (Neb. 1993).
200 Id. at 353.
201
Minorim, supra note 61 at 186.
202 Heise, supra note 94 at 1174.
203 Id
204 Id. at 1170.
205 Enrich, supra note 115 at 160.
i06 Heise, supra note 94 at 1176.
207 Id.
208 Minorini, supra note 61 at 177.
209 175 U.S. 528 (U.S. 1899).
210 305 U.S. 337 (U.S. 1938).
211 339 U.S. 629 (U.S. 1950).
212 339 U.S. 637 (U.S. 1950).
21j Minorini, supra note 61 at 177.
214 Id
2,5 Id at 187.
216 See David Tatel, Desegregation Versus School Reform, Resolving the Conflict, in, 61
Stanford Law Rev. (1992) for a discussion of the reaction to a changing judicial paradigm.
217
' Minorini, supra note 61 at 188.
218
See, e.g., Enrich, supra note 115.
9 IQ
See Wood, supra note 193.
220 See Heise, supra note 94 at 1176.
221 Minorini, supra note 61 at 184.

61
222
William Fischel, Did Serrano Cause Proposition 13?,in, 42 NATIONAL Tax JOURNAL 467
(1989).
223
Minorini, supra note 61 at 185.
224 Id. at 186.
225 Id. at 188.
226
Samuel P. Huntington. American Politics: The Promise of Disharmony (Belknap Press, 1981).
227 Id.
228 •
Michael Rebell, Fiscal Equity Litigation and the Democratic Imperative, in, 24 JOURNAL OF
Education Finance 23,24 (1998).
229 Id. at 30-33.
230 Id. at 31-32.
231 Id. at 34-36.
232 Id. at 36.
233 Thomas Jefferson, cited in Wisconsin v. Yoder, 406 U.S. 205 (U.S. 1972) at 221.
234 Alex de Tocqueville, Democracy in America 329 (Vintage Press, 1961).
i35 Verstegen, supra note 194 at 67.
236 Campbell City School District v. State, 907 P.2d 1238 (Wis. 1995).

CHAPTER 3
THE JUDICIAL BRANCH
Scarcely any political question arises in the United States that is not resolved,
sooner or later, into a judicial question. Hence, all parties are obligated to borrow
in their daily conversation, the ideas and even the language peculiar to judicial
proceedings.1
Jurisprudence in the American democracy remains an integral part of the nation’s
political and social “conversation,” subject only to gradations of intensity as particular rulings or
judicial dispositions seize popular and scholarly attention. Education finance litigation lies
squarely within this discussion, given the fiscal, normative, and jurisdictional implications and
premises at play in these actions. In order to better appreciate this area of American jurisprudence
amidst the totality of the nation’s judicial “conversation,” it is necessary to consider judicial
theory, constitutional interpretation, and the unique nature of state courts and constitutions. Such
consideration must distinguish state judiciaries and these courts’ institutional and administrative
roles from that of the federal courts. While the concept of judicial function and role has often
been considered in general terms, the doctrines which apply to the United States Supreme Court
and the lower federal courts, referred to herein as Article III courts,2 are not completely apposite
to state court adjudication. This chapter of the study offers a treatment of each in tum, providing
the context within which the course of education finance litigation may be contemplated.
Constitutions specify the delegation of governmental powers, v/hile identifying rights
which the government cannot violate. The authority granted to courts to consider whether the
actions of the government are consistent with these tenets and to invalidate those which fail to
evidence fidelity with same is known as judicial review.3 The simple directness of this principle
belies the complexity of the fundamental question it continues to present to constitutional law and
the role of the judiciary: the justification for and scope of judicial review. Considerations of
62

63
judicial restraint and judicial activism, justiciability, separation of powers and constitutional
theory and interpretation are enveloped within the basic tenets of judicial review. Care must be
exercised not to confuse the polarities exhibited within these considerations with the power of
judicial review itself; the fact that a court may interpret a constitution and other laws is not
indicative in and of itself of a particular judicial posture.4
The authority to determine the meaning and application of a written constitution failed to
gamer even mention in the Federal Constitution.5 Yet, as Alexander Bickel observed, “[tjhis is
not to say that the power of judicial review cannot be placed in the Constitution; merely that it
cannot be found there.”6 Considering the development of the institution of the judiciary and
judicial review Bickel noted that:
Congress was created very nearly full blown by the Constitution itself. The vast
possibilities of the presidency were relatively easy to perceive and soon,
inevitably, materialized. But the institution of the judiciary needed to be
summoned out of the constitutional vapers, shaped, and maintained... [yet] it is as
clear as such matters can be that the Framers of the Constitution specifically, if
tacitly, expected that the federal courts would assume a power—of whatever
dimensions—to pass on the constitutionality of the actions of Congress and the
President, as well as of the several states.7
Constitutional historian David O’Brien provided the perspective that:
The Framers failed to think through the power of judicial review and its
ramifications for constitutional politics...The Constitution... is not self¬
interpreting and crucial principles such as judicial review...are presupposed
rather than spelled out...in creating separate institutions that share specific and
delegated powers, the Constitution amounts to a prescription for political struggle
and an invitation for an ongoing debate about constitutional principles.8
The essence of the difficulty in defining and establishing the parameters for the institution was
that judicial review presents as a “countermajoritarian force” in American democracy.9 Bickel,
while weaving an historical and jurisprudential justification for review, nonetheless
acknowledged that “judicial review is a deviant institution”50 in a democracy; given the power
conferred to the judiciary to apply and construe a constitution or law against the wishes of
legislative majority and hence the citizenry of the republic. The inherent anti-democratic nature of
an independent and strong judiciary drew the attention of Federalists and Anti-Federalists alike as

64
the nascent nation struggled though a constitutional confirmation. Alexander Hamilton, a
proponent of a judiciary serving to check the executive and legislative branches, conceived that it
would stand as an intermediate body between the people, with a constricted authority. Regarding
the judiciary as the “least dangerous branch,” Hamilton wrote thai:
Whoever attentively considers the different departments of power must perceive,
that in a government in which they are separated from each other, the judiciary,
from the nature of its functions, will always be the least dangerous to the political
rights of the Constitution; because it will be least in a capacity to annoy or injure
them. The executive not only dispenses the honors, but holds the sword of the
community. The legislature not only commands the purse, but prescribes the
rules by which the duties and rights of every citizen are to be regulated. The
judiciary, on the contrary, has no influence over either the sword or the purse, no
direction either of the strength of the wealth of the society, and can take no active
resolution whatever. It may truly be said to have neither FORCE nor WILL, but
merely judgment; and must ultimately depend upon the aid of the executive arm
even for the efficacy of its judgments."
The Anti-Federalist, Robert Yates was not as sanguine as Hamilton, asserting that:
There is no authority that can remove [supreme court justices], and they cannot
be controuled by the laws of the legislature. In short, they are independent of the
people, of the legislature, and of every power under heaven. Men placed in this
situation will generally soon feel themselves independent of heaven itself...The
opinions of the supreme court, whatever they may be, will have the force of law;
because there is no power provided in the constitution, that can correct their
errors, or controul their adjudication.12
Powers and Rothman remarked that “Hamilton defended the Court’s independence by arguing
that judges would primarily rule on the letter of the law and refrain from pronouncements as to its
spirit.”13 While wagering that institutional and cultural constraints would provide a sufficient
check on the judicial branch, Hamilton acknowledged that in granting the independent power to
interpret the law there was no guarantee that judges would not stray beyond the “letter of the
law.” In The Federalist #81,14 Hamilton, while recognizing that mistakes and abuses were
possible, did not perceive a significant threat to democracy, writing that:
The supposed danger of judiciary encroachments on the legislative authority
which has been upon many occasions reiterated is in reality a phantom. Particular
misconstructions and contraventions of the will of the legislature may now and
then happen; but they can never be so extensive as to amount to an
inconvenience, or in any sensible degree to affect the order of the political
system. This may be inferred with certainty from the general nature of the

65
judicial power; from the objects to which it relates; from the manner in which it
is exercised; from its comparative weakness; and from its total incapacity to
support its usurpation by force.15
It remained for Chief Justice John Marshall’s opinion in the 1803 case of Marbury v.
Madison,16 to establish the authority of the courts to review under the Constitution the actions of
the other branches of government. Justice Marshall proposed that:
The question, whether an act, repugnant to the constitution, can become law of
the land, is a question deeply interesting to the United States; but, happily, not of
an intricacy proportioned to its interest. It seems only necessary to recognize
certain principles, supposed to have been long and well established, to decide it.17
Marshall’s confident tone continued as he asserted that:
The powers of the legislature are defined, and limited; and that those limits may
not be mistaken, or forgotten, the constitution is written. To what purpose are
powers limited, and to what purpose is that limitation committed to writing, if
these limits may, at any time, be passed by those to be restrained? The
distinction, between a government with limited and unlimited powers, is
abolished if these limits do not confine the persons on whom they are imposed,
and if acts prohibited and acts allowed, are of equal obligation. It is a proposition
too plain to be contested, that the constitution controls any legislative act
repugnant to it or, that the legislature may alter the constitution by an ordinary
act.1*
In essence, to leave the decision to the legislature was to allow those who the constitution was
constructed to limit to set those limits.19 The Chief Justice held that “[i]t is emphatically the
province and the duty of the judicial department to say what the law is...[and that] the judicial
power of the United States is extended to all cases arising under the constitution.”20
Over 150 years later, Chief Justice William Rehnquist, distilled the decision in Marbury, writing
that:
The ultimate source of authority in this Nation, Marshall said, is not Congress,
not the states, not for that matter the Supreme Court of the United States. The
people are the ultimate source of authority; they have parceled out the authority
that originally resided entirely with them by adopting the original Constitution
and by later amending it. They have granted some authority to the federal
government and have reserved authority not granted it to states or to the people
individually...if the popular branches of government—state legislatures, the
Congress, and the Presidency—are operating within the authority given them by
the Constitution, their judgment and not that of the Court must prevail. When
these branches overstep the authority given them by the Constitution...the Court
must prefer the Constitution to government acts.21

66
According to Chief Justice Rehnquist, John Marshall’s opinion justified an independent federal
judiciary vested with the power to review government actions given that it framed the role of the
justices as detached and objective observers engaged in the interpretation of an instrument framed
by the people.22 Another heir to the Chief Justice position, Earl Warren commented that:
Insistence upon the independence of the judiciary in the early days of our nation
was perhaps John Marshall’s greatest contribution to constitutional law. He aptly
stated that controlling principle when, speaking of the court during his tenure, he
said that he had “never sought to enlarge the judicial power beyond its proper
bounds, nor feared to carry it to the fullest extent that duty required.”23
Stimson has drawn attention to the Marshall’s concurrence with Hamilton’s thesis that
the courts should be vested with the power of judicial review, remarking that “Marshall shared
Hamilton’s legalistic conception of constitutional structure as a hierarchy of laws which placed
judgment and judicial authority firmly at the center of liberal politics....”24 Marshall’s reasoning
also reflected Hamilton’s response to the countermajoritarian ramifications of judicial review; of
the possible usurpation of power at the expense of the elected government, Hamilton contended
that the principle did not “suppose superiority of judicial to legislative power.”25 Rather, judicial
review “only supposes that the power of the people is superior to both; and that where the will of
the legislature declared in its statutes, stands in opposition to that of the people, declared in the
Constitution, the judges ought to be governed by the latter rather than the former.”26
Warren Burger, yet another Chief Justice in 1972 commented on Marbury, and noted that
although the Constitution made no mention of judicial review, “Marshall was not and never
claimed to be the originator of the doctrine since he was well aware of the growing acceptance of
the idea that constitutional adjudication was inherent in the very nature of a written
constitution.”27 Beyond his notation of the opinion itself, the historical record supports Chief
Justice Burger’s view on the era’s legal climate. A decade prior to Marbury the Supreme Court
confirmed that state laws contrary to the Federal Constitution were invalid. In Van Horne Lessee
v. Dorrance,28 Justice Patterson wrote “I take it to be a clear position; that if a legislative act

67
oppugns a constitutional principle, the former must give way and.. .it will be the duty of the Court
to adhere to the Constitution and to declare the act null and void.”29 A leading jurist of the time,
Spencer Roane, then a judge on the Virginia Court opined in Kamper v. Hawkins,30 that “[i]f the
legislature may infringe upon this Constitution [of Virginia], it is no longer fixed...and the
liberties of the people are wholly at the mercy of the legislature.”31 These two opinions also
present as congruent with the response to the countermajoritarian fears proffered by John
Marshall and Alexander Hamilton. Alexander Bickel, credited with actually introducing the
epigram [countermajoritarian] would subsequently justify judicial review not on the basis of an
inherent institutional weakness; rather he proclaimed it the Court’s role to pronounce and guard
public values in principled fashion and to build consensus around them. Bickel’s thesis was that
the legislative and executive branches are not sufficiently insulated from the political process to
make difficult decisions grounded on principle, while asserting that:
Judgés have, or should have, the leisure, the training, and the insulation to follow
the ways of the scholar in pursuing the ends of government. This is crucial in
sorting out the enduring values of a society...Their insulation and the marvelous
mystery of time give courts the capacity to appeal to men’s better natures, to call
forth their aspirations, which may have been forgotten in the moment’s hue and
cry.32
It may be ventured that Bickel’s appreciation is best considered within the context of current
constitutional theory given the confines of judicial review as it presented at the turn of the
Eighteenth Century. Christopher Wolfe has marked that:
Judicial review “won out” in early American history after genuine struggles, but
the form in which it won was critical to its success. In a different form, it is likely
that it would not have survived. The form it took was “moderate” judicial review,
and the major qualifying components it incorporated were inherent limits of
judicial power, legislative deference, and the political questions
doctrine...[judicial review] was not to be exercised in a “doubtful” case.” In
cases in which they had doubts about the proper interpretation of the
Constitution, judges would defer to legislative opinions of constitutionality.33
Of the exercise of judicial review in the early republic, Powers and Rothman found that:
Even when it did act against legislatures, it could only do so to uphold a higher
constitutional principle. It never functioned as a “council of revision” an
institution that was contemplated but did not survive the deliberations of the

68
Constitutional Convention. A council of revision would have been a more purely
policy-making adjunct to the legislative branch, continually “revising”
legislation.34
Graglia cited the limited scope of review as articulated by Marshall, suggesting that:
Such a power of judicial review, limited to judicial enforcement of definite,
specific constitutional provisions, would constitute only a very limited intrusion
on democracy, the intrusion inherent in any constitutional provision that restrains
the policy choices of a current majority.35
This conceptualization of judicial review as a discrete and restricted institutional
intervention is borne out in the years subsequent to Marbury. Chief Justice John Marshall never
again invalidated federal legislation during his remaining thirty-two years on the bench, and the
Court did not so act until 1857, when in the Dred Scott36 decision it held that Congress was
without authority to regulate slavery/7 Undoubtedly, in theory and application judicial review has
undergone significant, if not tumultuous transformation. As Alexander Bickel noted, “[¡judicial
review is a present instrument of government. It represents choices men have made and
ultimately we must justify it as choice in our own time. What are the elements of choice?”38
Considering these elements is an exercise cognizant of the sentiments expressed by Chief Justice
Warren Burger that “[sjome residual controversy remains as to the exercise of judicial review
today, but is largely as to scope, not basic power.”39 In the realm of that “residual” controversy (a
characterization that is arguably too benign) Peretti has proposed that:
The self-perceived task for legal scholars is to resolve the two problems
associated with the Court’s power of judicial review. The first is the legitimacy
problem—the problem of reconciling the Court’s power with democratic values.
What possibly legitimate role can an undemocratic institution perform in a
democracy? What are the legitimate uses of judicial review and limits on its use?
The second problem is how to police or enforce those limits. How can we
effectively constrain judicial power and guard against judicial abuse?40
Doctrinal limits regarding judicial review are the essence of justiciability. Although in
principle it has many components, at its core it asks when a court can resolve a given dispute.
The complexity in responding to that query lies within the inherent judicial subjectivity at play in
the delineation of these doctrinal limitations. Bickel observed that, “[tjhe case does not exist in

69
which the power of judicial review has been exercised without some misgiving being applicable
in some degree.”41 Differences of degree reflect the nature of the particular principle being
utilized to gauge justiciability. To present as justiciable, all parties and the subject matter in a
particular action must be in compliance with the jurisdictional requirements for the court to
consider the legal issue. Prior to consideration it must be determined that the court have
jurisdiction over the parties and issue of the lawsuit.
Alexander Bickel coined the term “passive virtues” to describe the various techniques a
court may employ to avoid or delay deciding a legal controversy.42 Another commentator has
opined that the interpretation of justiciability “affords federal judges opportunities for what
Justice Brandéis called ‘not doing,’ on the view that federal courts ‘may exercise power only’ in
the last resort, and as a necessity.”43 Comprising the doctrine of justiciability, issues of standing,
mootness, ripeness, and a political doctrine question, address the parties to a suit, the issue at
hand, and, from the outset, establish a court’s orientation. It has been observed that the
calculation of the “justiciability doctrine both reflects and shapes underlying assumptions about
the judicial function....”44
The doctrine of standing focuses on who may seek remedy before the court for a
violation of the law; the plaintiffs must have been injured, impacted, or otherwise substantially
affected.45 Standing doctrine limits in federal courts compel plaintiffs to manifest a concrete
injury; a violation distinct from the public and thus precluding the utilization of Article III
courts46 to expound on generalized concepts.47 A connected line of legal reasoning addressing
when a court may entertain a dispute involves the principles of ripeness and mootness. Ripeness
considers whether a charge has yet to evolve into a justiciable threat subject to adjudication, while
mootness resides at the opposite end of the spectrum; characterizing issues before the court which
have already been resolved and cease to present as a current or “live” controversy.48 The
utilization of these precepts serves as a bulwark against an Article III court’s speculative venture
into the realm of abstraction and hy pothetical discourse. Hershkoff has observed that “no federal

70
judiciability doctrine is more entrenched than the ban on advisory opinions.”49 Justice Thomas
Clark, in addressing the boundaries of judicial review, wrote that:
The case or controversy presented must be a genuine dispute [with real and
adverse litigants], raising a substantial question. The Court does not deal in
advisory opinions [or abstract or hypothetical questions], moot questions [already
resolved by changing circumstances], or political issues [more appropriately
resolved by the President or Congress, or which the Court is incapable of
resolving]. Traditionally it shies away from deciding constitutional questions; not
rendering such a decision unless it is absolutely necessary to the disposition of
the case. Even though a substantial constitutional issue is presented it will not be
passed upon if the case can be disposed of on a non-constitutional ground...An
attack on an act of Congress on constitutional grounds is by-passed in the event a
construction of the statute is fairly possible by which the constitutional question
may be avoided.50
Having established the general power of the judiciary via acquiescence with review, the
application of the doctrinal strands of justiciability demonstrates the legitimacy of the court’s
exercise of jurisdiction.51 Yet within this judicial institution rests the fact that its boundaries are
not “are not universally recognized or well defined.”52 This is particularly evidenced in the
justiciable treatment of the political question and separation of powers doctrines; the scrutiny of
which is of direct consequence to a contextual appreciation of education finance litigation.
The “political question doctrine” is premised upon the understanding that certain issues
are nonjusticiable and inappropriate for judicial resolution; the courts determining that the issue
in question is more properly the province of the legislative and executive offices, these “political
branches” being more structurally and institutionally capable of addressing the controversy. The
Court has marked that:
The political question doctrine excludes from judicial review those controversies
which revolve around policy choices and value determinations constitutionally
committed for resolution to the halls of [the legislature] or the confines of the
Executive Branch. The Judiciary is particularly ill suited to make such decisions,
as “courts are fundamentally underequipped to formulate national [or state]
policies or develop standards for matters not legal in nature.”53
Chief Justice Moyer of the Ohio Supreme Court, in consideration of the doctrine, wrote:
The fact that [a lawsuit] implicates other branches of government, or has political
overtones, does not automatically invoke the political question doctrine. A
political question is one that requires policy choices and value judgments that

71
have been expressly delegated to, and are more appropriately made by, the
legislative branch of government.54
Chief Justice John Marshall first formally recognized the principle in Marbury when he held that
“[questions in their nature political, or which are, by constitution and laws, submitted to the
executive can never be made in this court.”55 The nonjusticiability of a political question is a
function of separation of powers;56 the legal principle equating separation of powers with a set of
institutional arrangements. Philip Kurland has described the arrangement, observing that:
Separation of powers...encompasses the notion that there are fundamental
differences in governmental functions—frequently but not universally denoted as
legislative, executive, and judicial—which must be maintained as separate and
distinct, each sovereign in its own area, none to operate in the realm assigned to
another.57
Determining and codifying where institutional spheres of responsibility and authority
begin and end remains a formidable, if not novel, challenge. In The Federalist #37, James
Madison proffered that:
Experience has instructed us that no skill in the science of government has yet
been able to discriminate and define with sufficient certainty, its three great
provinces—the legislative, executive, and judiciary; or even the privileges and
powers of the different legislative branches. Questions daily occur in the course
of practice which prove the obscurity which reigns in these subjects and which
puzzle the greatest adepts in political science.58
It has been suggested that “to resort to the idea that there is a tripartite division of powers
legislative, executive and judicial, each self-defining, is to deal with phantasms.”59 It is generally
conceded that the three branches were not to be completely separate; the framers of the
Constitution went to great lengths to demonstrate that the three branches should maintain a co¬
operative and interactive relationship in order to check institutional and administrative excess.60
James Madison asserted that the Constitution “enjoins upon its branches separateness but
interdependence, autonomy but reciprocity.”61 Chief Justice William Howard Taft held that “[t]he
fact is that the judiciary, quite as much as Congress and the Executive, is dependent on the
cooperation of the other two, that government may go on.”62 Maintaining that relationship while
simultaneously guarding autonomy complicates the application of the political question doctrine.

72
The Supreme Court sought to clarify the principle in Baker v. Carr.63 The plaintiffs in the
action challenged the constitutionality of the Tennessee Apportionment Act of 1901, charging
that it failed to provide for the reapportionment of members of the state’s General Assembly
among the state’s counties subsequent to each decennial census. In reversing a district court
ruling for the defendants, the opinion dismissed the argument that the case was nonjusticiable
given the political dynamic. In doing so the Court identified several circumstances which
evidenced the presence of a nonjusticiable political question. Justice Brennan, who penned the
majority opinion, stated:
It is apparent that several formulations which vary slightly according to the
setting in which the questions arise may describe a political question, although
each has one or more elements which identify it as essentially a function of the
separation of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or a lack of judicially discoverable
and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court’s undertaking independent resolution
without expressing lack of respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already made; or
the potentiality of embarrassment from multifarious pronouncements by various
departments on one question.64
Over twenty years after the Baker case, the Court, in Nixon v. United States,65 outlined a
procedure to follow in the determination if an issue was nonjusticiable. In consideration of a
constitutional text, the Supreme Court explained that:
[The Court] must, in the first instance, interpret the text in question and
determine whether and to what extent that issue is textually committed [in this
instance, to the legislative branch]...the concept of a textual commitment to a
coordinate political department is not completely separate from the concept of a
lack of judicially discoverable and manageable standards for resolving it; the lack
of judicially manageable standards may strengthen the conclusion that there is a
textually demonstrable commitment to a coordinate branch.66
Despite the pronouncements from the bench, it has been suggested that in several ways
“the political question doctrine is the most confusing of the justiciability doctrines.”67 Legal
scholars have questioned the very existence of the doctrine, citing a spurious rationale,

73
indeterminate scope and doubtful wisdom and validity in conception and application.68
Appraising the political question doctrine, Chemerinsky ventured that:
First, the confusion stems from the fact that the political question doctrine is a
misnomer; the federal courts deal with political issues all the time...Second, the
political question doctrine is particularly confusing because the Court has defined
it very differently over the course of American history. Finally...the political
question doctrine is confusing because of the Court’s failure to articulate useful
criteria for deciding what subject matter presents a nonjusticiable political
question.69
He further argued that the standards enunciated in Baker were inapplicable given that
“most...constitutional provisions are written in broad, open-textured language and certainly do
not include ‘judicially discoverable and manageable standards.’”70 Redish advanced the thesis,
starkly concluding that the doctrine “should play no role whatsoever in the exercise of the judicial
review power.”71 Bickel has found the legal, intellectual and political premises at play in this
justiciable institution not quite as ephemeral as did the aforementioned critics. He opined that:
Such is the foundation, in both intellect and instinct, of the political question
doctrine: the Court’s sense of lack of capacity, compounded in unequal parts of
(a) the strangeness of the issue and its intractability to principled resolution; (b)
the sheer momentousness of it, which tends to unbalance judicial judgment; (c)
the anxiety, not so much that the judicial judgment will be ignored, as that
perhaps it should but will not be; (d) finally (“in a mature democracy”), the inner
vulnerability, the self-doubt of an institution which is electorally irresponsible
and has no earth to draw strength from.72
The doctrinal limitations on judicial review, the foundations of which continue to
generate debate as the foregoing discussion evidenced, have evolved along with the posture of
American jurisprudence. Courts have played a significant role in the identification of difficult
social and political problems, and in some instances, dictated remedial initiatives. Powers and
Rothman noted that “most observers agree that courts have greatly expanded their role in
American political system, that the executive and legislative branches have sometimes
grudgingly, sometimes enthusiastically acquiesced in this expansion, and that the public for the
most part has also accepted it.”73 Taking stock of this incremental increase of intervention,
Wilson observed that:

74
The court is a vitally important forum in which individuals can assert
fundamental rights and seek appropriate remedies...The courts began the process
of school desegregation, put a stop to some bestial practices in prisons and
mental hospitals and have enabled thousands of people to get benefits to which
they were entitled or ended abuses they were suffering...But like all human
institutions, courts are not universal problem solvers competent to manage any
difficulty or resolve any dispute. There are certain things courts are good at and
some things they are not so good at.74
Distinguishing the role of American courts is a legal, social, and political exercise played
out far beyond law reviews and professional journals. The contemplation of “judicial activism”
and “judicial restraint” and the growth of judicial authority has been entertained by politicians,
social activists, and pundits from the popular media. As a part of the judicial “conversation” the
ongoing colloquy not only incorporates the doctrinal basis of justiciability; the issue is enveloped
in normative and philosophical principles, more often than not, presenting devoid of legal
grounding. The normative question of the proper role of courts in American government is
difficult to answer in practice.75 A degree of this difficulty is attributable to the inherent power of
the judiciary and the regard the courts are accorded by the citizenry The former dynamic reflects
the simple truth Bishop Hoady articulated before the King in a 1717 sermon, “Whoever hath an
absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver to all
intents and purposes, and not the person who first wrote or spoke them.”76 Of a more recent
vintage, a legal scholar opined that “nearly all major changes in American society during the last
century—many of which can be described as revolutionary and many of which are not favored by
a majority of American people—have been brought about by our judges.”77 Levi remarked that
“[a]n idea adopted by a court is in a superior position to influence conduct and opinion in the
community; judges, after all, are rulers. And the adoption of an idea by a court reflects the power
structure in a community.”'8 Underscoring this institutional dominion is that “courts have been
and remain far more esteemed than the democratic institutions of government...”79
The ongoing consideration of judicial review has been operationalized by charting
judicial behavior within the coordinates of activism and restraint.80 However, as Fischer

75
observed, “except perhaps among a relatively small group of scholars there is no agreement
whatsoever even on the meaning of judicial activism, and its counterpart, judicial restraint... all
too often the matter of activism or restraint resolves itself into ‘whose ox is being gored?’”81
Two perspectives provide a framework upon which to consider the complexity of the tension
between the two legal and philosophical polarities; the first of which Bosworth provided when he
wrote:
“Judicial activists” see their function as that of promoting the common good
(however defined) through law. Often they justify this goal-oriented behavior by
stressing the impossibility of interpreting the law in any other way than a modem
observer would. “Judicial activists” do not necessarily confine their activism to
the discovery of constitutional wrongs...these judges are more likely to devise
expansive remedies for these violations. The rise of “public law” litigation...was
spurred by activist judges using their equitable remedy powers to address
significant social problems thought to be solely under legislative and executive
control...judicial activism of interpretation and judicial activism of remedy are
part and parcel of the same view of the judicial role.82
Encapsulating judicial restraint, Lamb observed that:
Judicial restraint embodies at least six fundamental notions: 1. that the justices
abide by the intent of the framers of the Constitution and statutes, and that the
justices do not read their own personal preferences into the law; 2. that the
justices pay deference to the legislative and executive branches of the federal and
state governments by seldom overruling their policies and then strictly on “legal”
grounds; 3. that the justices rely upon statutory rather than constitutional
construction whenever possible; 4. that the justices accept for decision only cases
and controversies where the litigants have standing to sue in lives issues; and 5.
that the justices neither issue advisory opinions, nor 6. answer political
questions.
Beyond these baselines, it has been suggested that as one moves “through the literature on
judicial activism and restraint it becomes obvious that everybody has an ax to grind and all too
often the discussion is more polemical than analytical.”84
Considering the constrained nature of judicial review as originally conceived and
administered, the potential power of its utilization was not ascertained until the early Twentieth
Century. Christopher Wolfe has posited that from its generation through the Civil War, courts
exercised authority within the confines of judicial review as inherited from the framers.
Following the Civil War, the courts through the adoption of due process jurisprudence became

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more active in the application of natural law principles and the protection of property rights; often
striking down state and federal statutes attempting to check economic activity. In what Wolfe has
described as a “constitutional revolution,” during the New Deal the courts resumed a more
restrained posture, exhibiting deference to legislatively engendered social and economic reforms.
In yet another evolution, the Warren and Burger Courts embraced an egalitarian appreciation of
jurisprudence; attempting to spur, if not oversee, the codification of civil rights and liberties.85
Jacobson has suggested that:
Important changes in legal and political culture were preconditions for the rise of
an activist judiciary. They provided the key ideas and innovations establishing
and legitimizing modem judicial power. The progressive Wilsonian view of
regarding the Constitution not as a historically bounded document but rather as
something like an organic manifestation of the general will facilitated acceptance
of greater judicial activism even with respect to constitutional questions.... 6
Arguing that the courts have become so “systematically involved with social, economic, and
political questions central to the nation’s order and well-being” over the past fifty years to such an
extent as to “suggest a potential imbalance in [the] national institutions,”87 Powers and Rothman
paused to consider the genesis of this legal dynamic. They posited that “much of the growth of
judicial power is attributable to the historical transformation of America into a modem welfare
state,” and that a strategic advantage accrues to “modern courts because they function in a heavily
bureaucratic policy making environment,” facilitating an incremental “aggregation of
authority.”88 It has also been ventured that:
The organizational imperatives of a reformed American political system dictated
that the courts step in...Issues came before the court as a matter of course,
because other political institutions, either through action or inaction, had failed to
resolve or had even exacerbated serious social and political problems. The courts
were simply applying constitutional provisions to new circumstances...There is
no doubt that judicial activism has paralleled and is inextricably connected with
the growth of American state power in the twentieth century. The state is more
intimately intertwined in the daily lives of American citizens than at any other
point in history, and the courts have played an active role in this.89
Of particular interest for scholars have been the implications for judicial review posed by
the Supreme Court’s ruling in Brown v. Board of Education,90 Graglia believed that the ruling

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effectively removed significant restraints on judges and diminished the recognition of the need
for judicial self-restraint. He noted that:
If the Court could bring about this revolution [through Brown], it came to be
thought by judges and others, what revolutions could it not bring about? What
need was there for proponents of basic social changes to undergo the delays and
uncertainties of the democratic process? Judges came to be seen as forces for
moral enlightenment and engines for progress, whose public policy choices were
obviously much to be preferred to those of mere politicians beholden to the
multitude of private interests.91
Bickel wrote, in reference to the expansion of jurisdiction, that:
Brown v. Board of Education was the beginning. Subsequently, the Court
declared Bible reading and all other religious exercises in public school
unconstitutional; it ordered the reapportionment of the national House of
Representatives, of both houses of state legislatures, and of local government
bodies on a one-man, one-vote basis; it reformed numerous aspects of state and
federal criminal procedures, significantly enhancing the rights of the
accused...and it laid down a whole set of new rules governing...the conduct of
police throughout the country toward persons arrested on suspicion of crime...in
addition, the Court limited the power of state and federal governments to forbid
the use of birth-control devices, to restrict travel, to expatriate naturalized or
native-born citizens, to deny employment to persons who associations are
deemed subversive and to apply the laws of libel.92
The intervention of courts into the formulation and implementation of public policy,
characterized by the interpretation and expansion of constitutional texts, an authority seldom
exercised prior to the mid-Twentieth Century, has significantly impacted legislation and
governance at the federal, state, and local levels.93 Commentators have noted the “aspect of
modem judicial review that sets its apart from earlier jurisprudence lies in the discovery and
application of appropriate remedies.”94 Fuller maintained that “this increased role of the courts
represented a departure from the traditional view of the courts as passive dispensers of law. Under
the more traditional model, judges were neutral arbiters in a litigant driven adversary system.”95
Bosworth noted that newer theories of adjudication dismissed the premise that courts were
incapable of entertaining social and political controversies and effecting change; an expansion of
the judicial role exhibiting a theme of “basic fairness.”96

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If a consensus can be detected in considerations of judicial review vis-á-vis activism and
restraint it is the acknowledgement of the significantly higher profile courts have assumed in the
American polity. Graglia observed that ‘“judicial review’ has meant very different things at
different times, and it is only in very recent times that it has meant anything like the degree of
power our judges now possess...;”97 while Irons reasoned “that judges ‘make’ law rather than
‘discover’ it can no longer be disputed. The question is not whether judges make law, but in
whose interests, for what purposes, and in pursuit of what policies?”98 And Gunther starkly
asserted that “there has been a sea change in the political philosophy with regard to judicial
governance. In a very real sense we are today watched over by the bevy of Platonic
guardians....”99 Comity beyond this recognition of the present judicial posture is conspicuously
absent as the issue is exhaustively interpreted. It has been marked that “the endless debate over
the propriety of judicial review encapsulates the tension between judicial authority to interpret
law and the majoritarian will as embodied in legislative acts, [judges] must reconcile the principle
of the rule of law with that of popular sovereignty....”100
Basic concepts of the proper role of the judiciary in American democracy underlie the
construction of the dimensions of judicial activism and restraint. The competency of courts to
prescribe remedial measures usurping the legislative and executive prerogatives, and the
legitimacy or illegitimacy of this judicial intervention, frame the appreciation of judicial review
within commonly articulated perceptions.101 Asserting that legitimacy and capacity are related,
Horowitz remarked that:
A court wholly without legitimacy may soon suffer from diminished capacity.
The cases for and against judicial review have always rested in part on
assessments of judicial capacity; on the one hand, the presumably superior ability
of courts to “build up a body of coherent and intelligible constitutional
principles,” on the other, the presumably inferior ability of courts to make the
political judgments on which exercises of the power of judicial review often
turn...traditional judicial review meant forbidding action, saying “no” to the
other branches...now the judicial function often means requiring action, and
there is a difference between foreclosing an alternative and choosing, between
constraining and commanding.102

79
In consideration of the diversiform nature of these judicial concepts, Sowell wrote that:
“Judicial activism” and “judicial restraint” raise logically obvious but often
ignored questions: Activism toward what? Restraint toward what?...the current
popular majority, the legislature representing the current popular majority,
statutes passed by present or past legislatures, the acts of current or past
executive or administrative agencies, the meaning of the words in the
constitution, the principles or purposes of those who wrote the constitution, or
legal precedents established by previous judicial interpretation?103
A fundamental question—“Are judges the proper instruments of change counter to the
will of the political branches of the government, and accordingly, the desire of the people?”—is
by necessity couched in a consideration of the ramifications of an activist judiciary presents for a
representative democracy. Chief Justice Rehnquist has commented that there is “no justification
for a ‘third legislative branch,’ if so...it should at least ought to be elected and responsible to
constituencies... if there is going to beacouncil ofrevision, it ought to have at least some
connection with popular feeling.”104 Stressing a democratic imperative to assign the construction
of law and the implementation of policy to elected representatives, Rehnquist stated that:
Representative government is predicated upon the idea that one who feels deeply
upon a question as a matter of conscience will seek out others of like view or will
attempt to persuade others who do not initially share that view. When adherents
to the belief become sufficiently numerous, he will have the necessary
armaments required in a democratic society to press his views, upon the elected
representatives.105
Abraham Lincoln expressed a similar sentiment, referencing the frustration of the public to the
Dred Scott decision; addressing the matter the President asserted that:
The candid citizen must confess that if the policy of the government, upon vital
questions affecting the whole people, is to be irrevocably fixed by decisions of
the Supreme Court, the instant they are made, in the ordinary litigation between
parties in personal actions, the people will have ceased to be their own rulers,
having to that extent practically resigned their government into the hands of that
eminent tribunal. 106
Substantiating the premise that the “ultimate issue between judicial activism and restraint
is the institutional locus of discretion... the question as to who is to decide;”107 the
countermajoritarian concerns articulated by Chief Justice Rehnquist and President Lincoln have
drawn advocates and detractors of an “aggressive” judicial profile into an intense and ongoing

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debate. Boot has argued that “America used to be a democracy, a government by, and for, the
people. Now it has all the earmarks of a juristocracy....,,m Sunstein, endorsing “deliberative
democracy,” has maintained that the ultimate constitutional protection resides with the citizenry;
cautioning that the excessive utilization of judicial avenues serves to diminish the responsibility
of elected officials and thwarting other nonjudicial remedies.109 Bork has charged that “courts
provide the necessary means to outflank majorities and nullify their votes,”110 thus advancing
“ends that democratic branches of government would never sanction.”111 The former Court
nominee identified the “American Disease;” the “seizure by judges of authority properly
belonging to the people and their elected representatives,”112 a malady presenting when judges
have been accorded, or appropriated, the power to override the popular will. Nisbet has cited the
creation of a legal paradigm which “sees in the [courts] precisely what Rousseau saw in his
archetypical legislators and Bentham in his omnipotent magistrate: sovereign forces for
permanent revolution.”113 Rosenberg distinguished a “constrained court” view that “maintains
that courts will generally not be effective producers of significant social reform for three reasons;
the limited nature of constitutional rights, the lack of judicial independence, and the judiciary’s
inability to develop appropriate policies and its lack of power to implement.”114 Stressing the
imperative within a democracy to assign policy construction and oversight to those branches
subject to popular checks as opposed to a generally unfettered judiciary, Justice Harlan Stone
opined that:
While unconstitutional exercise of power by the executive and legislative
branches of Government is subject to judicial restraint, the only check on our
own exercise of power is our own sense of self-restraint...For the removal of
unwise laws from the statute books lies not to the courts but to the ballot and to
the processes of democratic government.115
Justice Robert Jackson, while marking that the judiciary is “an institution of distinctive
characteristics which were intended to give it independence and detachment, but which tend to
make it antidemocratic,” remarked that there is “no evading the basic inconsistency between
popular government and judicial supremacy.”116 Writing in 1941, the Justice opined that, “this is

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government by lawsuit. These constitutional lawsuits are the stuff of power politics in
America.”117 Bickel questioned “which values, among adequately neutral and general ones,
qualify as sufficiently important or fundamental...to be vindicated by the [court] against other
values affirmed by legislative acts?”118 Of the relationship between the political branches and the
judiciary, he cautioned that the legitimacy of the courts is guarded by “keeping the judicial
function distinct from the legislative and thus capable of being justified.”119 Thayer believed that:
[Judicial review], even when unavoidable, is always attended with a serious evil,
namely, that the correction of legislative mistakes comes from the outside, and
the people thus lose the political experience, and the moral education and
stimulus that comes from fighting the question out in the ordinary way, and
correcting their own errors. The tendency of a common and easy resort to this
great function, now lamentably too common, is to dwarf the political capacity of
the people, and to deaden its sense of moral responsibility.120
Colwell spoke to another dimension of the legislative process, considering that:
[A] problem that emerges from judicial review is excessive limitation of
legislative alternatives...if states’ legislative bodies perceive the judiciary as
having limited or mandated any viable remedies to correct an unconstitutional
[statute], legislatures may decide not to abide by the court’s ruling or else not
cooperate and hinder any attempt at resolution.121
Power and Rothman suggested that intervention “whether it brings about desirable
institutional reforms or not, comes at a cost.. .if political compromise is less likely to come from a
court battle than from [the legislative process] then at least some of the political polarization
evident in the political system can be attributed to court decisions that settle pubic policy
disputes....”122 Illuminating the rigidity engendered through a dependence upon a judicial
resolution, given the treatment accorded a specific issue divorced from the total polity, Justice
Oliver Wendell Holmes wrote, “all rights tend to declare themselves absolute to their logical
extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other
than those on which the particular right is founded, and which become strong enough to hold their
own when a certain point is reached.”123
McCleasky ventured that arguments for judicial activism are premised upon a distrust of
democracy, a belief “that someone somewhere must over see and protect the people from

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themselves....”124 Reflecting that sentiment, Graglia proffered that “the strength of judicial
review... derives in part from the undying but forlorn human hope of somehow relieving
ourselves of the difficulties and uncertainties of decision making on basic questions of public
policy by finding persons of exceptional wisdom and goodness to whom the responsibility can be
entrusted.”125 It has been suggested that “only a small degree of distrust in democracy is required
to favor a system of judicial review in which judges are authorized to invalidate the acts of
elected representatives....”126
J. Clifford Wallace proposed that the gradations in the application of judicial review
evidence conflicting conceptualizations of democracy. The justice from the United States Court
of Appeals, Ninth Circuit, offered that if democracy were considered “an intrinsic, fundamental
value, then the area of legislative discretion is presumably larger than would be if democracy
were a minor or derivative value.”127 If democracy were afforded treatment as an instrumental
value, it “is valuable only to the extent that it produces substantially ‘better’ decisions than would
any other decision making procedure.”li8 Justice Wallace wrote that:
A noninstrumental theory of democracy... places value in the democratic process
even when decisions fall short of the best possible—indeed even when the
majority makes a decision that is stupid, irrational or completely wrong
headed...[while] constitutional limits remain...it is better that the majority make
a wrong decision than that a judge make the decision, even if the judge would
make a socially more beneficial decision...[in essence] the process by which the
decision is made may have greater value than the decision itself.129
Making the assumption that no judge believes that he or she can correct any enactment
considered unwise absent a constitutional or statutory rationale, Wallace maintained that “if one
believes in the instrumental theory of democracy... one is likely to find the required constitutional
argument or statutory construction when faced with what one perceives to be a bad statute,”130
and endeavors to override legislative intent.
Advocates of restraint have cited review as culpable in the facilitation of efforts of
organized interest groups to circumvent the legislative process, and hence the necessity of taking
their case to the public at large; rather presenting an agenda to a judiciary which may be more

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predisposed to provide a forum and sanction. Bosworth observed that the “use of litigation by
organized interest groups battling for social change is a relatively recent feature in American
history. In earlier times...going to court was the preferred option for interests that wanted to slow
or halt social reform....”131 Melnick has concluded that public interest groups have played a
major role in the transformation of courts into policy making institutions. He found that these
groups “all saw the advantage of presenting their position in terms of rights and of using litigation
as a central element of their political strategy.”132 Melnick cited groups such as the National
Association for the Advancement of Colored People and the American Civil Liberties Union as
“sophisticated players with long-range litigational strategies,” and, what is perhaps most troubling
to “restraintists,” through the initiation of litigation “they have an opportunity to engage in forum
shopping to argue before the most sympathetic judges.”133 Butler succinctly observed that “all it
takes is one person with a good argument that can convince a judge and that’s that,”134 while
Graglia opined that “it is probably only a small exaggeration to say there is no policy so
inconsistent with the possibility of a harmonious society that some organization has not urged or
considered urging its adoption by some judge.”135
Legal theorists supporting judicial review acknowledge a distrust of democracy and the
appreciation of the judiciary as a check on the conduct of the other branches. They suggest that
“judicial intervention is not antidemocratic; rather it is a constitutional mechanism necessitated to
counter those aspects of the legislative majority seen to suppress democratic values.”136
Countering the countermajoritarian, or anti-democratic, fears Miller wrote that a tension has
always “existed between the ideal of popular sovereignty and the institution of judicial review.
But if one asks how government can be obliged to control itself, the answer must not come from a
sense...of self-restraint by the avowedly political branches... but by some institution external to
them.”137 He argues that critics of judicial activism “assume without evidence that the political
process is up to the needs of America.” A blind adherence to the political process ignores the fact
that “the system of pluralism has either broken down or is rapidly breaking down.. .because it

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provides no spokesman for the public (or national) interest ”138 Of the supposition that the
public interest is produced “by an invisible hand," Miller contends that “political pluralism as a
self-correcting system is as mythical as the market of the classical economist.”139 Asserting that
the political process “rewards only the powerful," the professor believes that because judges have
possessed a unique insight into a “system of absolute values," segments of American society
unable to benefit from the pluralistic political process “have found a champion” in the
judiciary.140 As for concerns that the judicial system through an aggressive application of review
negates the popular will, Miller confidently states that the courts “cannot long be out of step with
the dominant political forces of the nation. ..[decisions] tend to reflect the actual political power
at any time.”141 Tushnet articulated a similar posture; while observing that judicial review had not
operated historically to the advantage of liberal or conservative political interests, he wrote:
Looking a judicial review over the course of U.S. history, we can see that courts
have regularly been more or less in line with what the dominant national political
coalition wants. ..we can say that judicial review amounts to noise around zero. It
offers essentially random changes, sometimes good and sometimes bad, to what
the political system produces.14
While McCloskey may hold that “judicial activism is a slippery term,”143 others in
addition to Miller have found it a concrete remedy to a flawed political system. Downing marked
that the “fact the courts are the principal forums for resolving so many political issues is
indicative of serious default on the part of...legislative and executive institutions.”144 Seeing little
prospect that the political branches can soon be reconfigured to adequately address “society’s
deepest problems,” he contended that while “it is very doubtful that our courts can save the
country, only they may be able to buy the time necessary for revitalization of our other
institutions.”145 Powers and Rothman, decidedly not proponents of judicial activism admitted that
“legislative institutions have often failed to live up to the responsibilities of representative
governance, and the courts are an important check against unbridled executive discretion as well
as legislative aggrandizement.”146 Cohen remarked that “it is evident that even if the judiciary’s

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actions might be viewed as a usurpation of the legislative prerogative, this intrusion may be
justified as being clearly justified in the face of legislative inaction....”147
The argument has been proffered that “while the democratic process rather than judicial
review must be relied upon to justify policymaking, it is as a consequence the specific province
and duty of judges to protect the democratic process itself.”148 This view can be traced to Justice
Harlan Stone’s famous footnote in United States v. Carotene Products;149 citing the limits to the
presumption of constitutionality afforded legislative initiatives which appeared to
“seriously...curtail the operation of those political process ordinarily relied upon to protect
minorities,” thus requiring a “more searching judicial inquiry.”150 Developing a thesis that
judicial review serves to protect the republic from threats to democracy engendered by
overbearing majorities, Choper argues that if “judicial review were non existent for frustrated
minorities, the rights already lost in the legislative halls, would have only one remaining
battlefield—the streets...the alternatives to judicial review...are either disobedience or
discontented acceptance.”151 Ward has offered that while public discourse within the context of
legislative resolution of policy issues is ideal, political power is not equally distributed to all
participants in the political process.152 Justice William Brennan contended that courts were in a
unique position from which to address this flaw, opining that “insulated as they are from the
political pressures, and charged with the duty of enforcing the constitution, courts are in the
strongest position to insist that unconstitutional conditions be remedied, even at significant
cost.”153
Taking issue with call for dependence upon the political system and the necessity of
heeding the popular will, Perretti stressed that:
The American political system is not in any way directed to the goal of majority
rule, it is in virtually all respects an antimajoritarian system, including its
rejection of legislative supremacy... [it] consists of numerous diverse political
institutions, none of which is hierarchically superior to another. This provides
groups, especially minorities, with a variety of arenas in which to advance their
interests and contest policies with which they disagree. In this pluralist system,
judicial review is neither deviant nor illegitimate rather, it is a quite normal

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expression of the pluralist principles of redundancy and diversity in political
• 154
representation.
Perretti maintained that the “ordinary democratic means for resolving political issues...are on
occasion inappropriate...issues [such as] minority rights or fundamental constitutional rights,
such as freedom of speech, and the right to vote, are unlikely to receive fair treatment in the
political arena.”155 Wallace Justice, while serving on the U.S. District Court, Eastern District of
Texas, found that “the source of our enduring and venerable ideals to be more than the vox
populi,,,]56 while Lippmann, considering the rule of the majority, warned that:
[It] may easily become an absurd tyranny if we regard it worshipfully, as though
it were more than a political device. We have lost all sense of its true meaning
when we imagine that the opinion of fifty-one percent is in some high fashion the
true opinion of the whole hundred percent, or indulge in the sophistry that the
rule of the majority is based upon the ultimate equality of man.157
Beth provided a tempered justification of review within a democracy, commenting:
Lest he be misunderstood, it should be added that the present writer has no
illusions concerning the long range effectiveness of judicial protection for civil
liberties; he subscribes rather to the now commonly held idea of the [judiciary]
as, at best, a delaying agency. If popular enthusiasm for repression is short lived,
however, judicial decisions may be of extreme importance in forcing that second
thought, which may eliminate the very desire to repress.158
Concisely appraising the issue, Wallace remarked that:
The partisans of both judicial activism and judicial restraint agree that
government cannot act beyond the outer limits established by constitutional
boundaries without becoming subject to judicial intervention. The controversial
question is just where those limits are and thus how extensive the territory is
within which government can function free of judicial intervention.159
The propriety of judicial review superimposes a frame of reference upon considerations
of constitutional interpretation and conceptions of the role of judges; deliberations which are
centered on contesting legal theories. The intensity of these discussions has paralleled the
emergence of an activist judiciary. Gavison observed that the “relationships between law,
adjudication, theories of law and theories of adjudication, be they descriptive (what in fact do
judges dol) or normative (what should judges do7) have been the subject of serious debate in
contemporary legal philosophy for some decades now.”160 Distinguishing different modes of

87
decisionmaking; their methods, sources and scope, and the philosophical groundings they exhibit
is a subjective exercise; the parameters they evidence often being blurred and dismissing any
notion that there is anything “essential or inherent about these alternatives.”161 One of the
strongest advocates of a restrained judiciary, Justice Felix Frankfurter, once remarked,
“constitutional law is not at all a science, but applied politics.”162 Constitutional theory, in a
general sense, is designed to chart this application within the context of constitutional
interpretation. The controversies are centered upon the extent to which jurists decide issues before
the court on grounds intrinsic or extrinsic to the text, or in the extreme, counter to the document.
Operating on the premise that judicial review is fundamentally at odds with democratic
values, what Perretti has coined “conventional constitutional theorists” maintain that its
introduction requires a “special or exceptional source of legitimacy.”163 A significant
characteristic of this approach is the embrace of “legal autonomy”-—a conviction that the
constitutional text can be deciphered in an objective and detached manner; an exercise free of a
judge’s personal values, policy preferences, or biases. Beneath this overarching presumption,
reside interpretive and non-interpretive orientations.164
An interpretive approach to constitutional law and adjudication may also be referenced as
“original intent,” “strict construction,” or “cognitive meaning.” Two points distinguish
interpretivism; the insistence that courts are only to act upon principles specifically articulated
within the text, and that it presents as the only method of interpretation which can justify the
introduction of review while simultaneously serving as a check on judicial power.165 According to
Ely, this approach requires that:
Judges deciding constitutional issues should confine themselves to enforcing
norms that are stated or clearly implicit in the written constitution...[thus]
interpretivism fits our ordinary notion of how law works, if your job is to enforce
the constitution, the constitution is what you should be enforcing, not whatever
may happen to strike you as a good idea at the time.166
J. Clifford Wallace, acknowledging the limitations of the approach, did stress that:

88
Interpretivism will not always provide easy answers to difficult constitutional
questions. The judicial role will always involve the exercise of discretion. The
strength of interpretivism is that it channels and constrains this discretion in a
manner consistent with the constitution. While it does not necessarily insure a
correct result, it does exclude from consideration entire ranges of improper
judicial responses...[and] even if judges might reach more and just and
enlightened decisions...a benevolent judicial tyranny is nonetheless a tyranny.16'
Sir William Blackstone offered a series of steps toward carrying forward those
“intentions at the time law was made.”168 The words of the text were “to be understood in their
usual and most known signification... [according to] their general and popular use.”'69 If the
“words happen to still be dubious” the jurist was then permitted to “establish their meaning from
context” provided that it did not supersede the cognitive meaning.170 Lastly, if the words still had
no significance or “a very absurd signification,” Blackstone counseled that only then was a jurist
justified in “considering the reason and spirits” of the text or the “cause which moved the
legislator to enact it.”11 It has been suggested that these steps defined the role of judges,
prescribing that they were solely tasked with the “carrying out instructions, with a meaning
already given whether given clearly or in a manner requiring further steps of discovery.”172 The
construction of new meanings, be they based upon “later insights, judicial conscience, or the
philosophical values presumed to motivate the original law,” was not a legitimate component of
adjudication.173
Robert Bork emerged as a leading contemporary proponent of interpretivism. He called
upon jurists to restrict their scrutiny of constitutional texts to the “original understanding;” an
interpretative process that does not engage in a speculative consideration of the subjective
intentions of the authors, rather utilizes the words as they “would have been understood at that
time.”1'4 Bork maintained that historical constitutions were understood by those who enacted
them to have a meaning of their own and it is “that meaning that judges ought to utter.”177 Of
jurists who stray beyond these confines, it was marked that:
Activist judges are those who decide cases in ways that have no plausible
connection to the law they purport to be applying, or who stretch or even
contradict the meaning of that law. They arrive at results by announcing

89
principles that were never contemplated by those who wrote and voted for the
law...they can be properly active in the enforcement of liberties confided to their
care, but not activist in creating new and unwarranted rights and liberties in
defiance of democratic authority. Self denial is unattractive, and judges have
manifold opportunities to surrender to the temptation to enact their own beliefs.
Such performances do not accord with any known version of the rule of law.176
While acknowledging that “two judges equally devoted to the original purpose may disagree
about the reach or application of the principle at stake and so arrive at different results,”177 Bork
asserted that if the constitutional text does not clearly and persuasively justify intervention,
“judges must stand aside and let current democratic majorities rule...where the law stops, the
judge must stop.”178 Graglia argued that to rely upon anything other than original intent was to
reduce constitutions to irrelevancy; serving only to provide “the peculiar phrases...used by judges
to state their ultimate conclusions when they disagree with the public policy choices made by
Many of the most forceful and substantive articulations of an interpretivist philosophy
have been offered by Federal and Supreme Court Justices. Oliver Wendell Holmes long
maintained that the cognitive meaning or original intent of the laws provided judicial instruction;
a guide that took precedent over psychological motivations or philosophical dispositions. The
jurist asserted that when the text “does not disclose one meaning conclusively according to the
rules of language,”180 the interpretive process did not countenance attempting to discern what an
individual had written or spoken by getting “into his mind;” if not clear, the question was “not
what this man meant, but what those words would mean in the mouth of a normal speaker of
English, using them in the circumstances in which they were used.”18' In Lochner v. New York,1*2
Justice Holmes criticized the majority for becoming a superlegislature enforcing a laissez-faire
economic philosophy. In dissent, Holmes opined that:
[A] constitution is not intended to embody a particular economic theory, whether
of paternalism and the organic relation of the citizen to the state or of laissez-
faire. It is made for people of fundamentally differing views, and the accident of
our finding certain opinions natural and familiar or novel and even shocking
ought not to conclude our judgment upon the question whether statutes
embodying them conflict with the Constitution of the United States.183

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In a decision nearly forty years subsequent, Justice Felix Frankfurter wrote that:
As a member of this Court I am not justified in writing my private notions of
policy into the Constitution, no matter how deeply I may cherish them or how
mischievous I may deem their disregard. The duty of a judge who must decide
which of two claims before the Court shall prevail...is not that of an ordinary
person. It can never be emphasized too much that one's own opinion about the
wisdom or evil of a law should be excluded altogether when one is doing one’s
duty on the bench. The only opinion of our own...that is material...is our opinion
whether legislators could in reason have enacted such a law.184
Justice Hugo Black, dissenting in Griswold v. Connecticut,185 cautioned that, “unbounded judicial
[creativity] would make of this Court’s members a day-to-day constitutional convention.”''86 Of
Black’s reasoning, O’Brien has observed that the Justice had argued “the threshold of permissible
judicial creativity is crossed...when the Court discovers and enforces values that are neither
specifically enumerated in, nor fairly traceable to, some provision in the text of the
Constitution.”187 Justice Black exhibited a textual appreciation of an interpretive approach, a line
of legal reasoning which finds certainty in the wording of the text and dismisses the need to
further consider the history of a provision’s enactment.188 In his famed Commentaries on the
Constitution of the United States.189 first published in 1833, Joseph Story who was both a Justice
of the Supreme Court and a Harvard professor grounded the interpretation of constitutional texts
on his understanding that, “[u]pon subjects of government it has always appeared to me, that
metaphysical refinements are out of place. A constitution of government is addressed to the
common sense of the people; and never was designed for trials of logical skill, or visionary
speculation.”190
The Supreme Court, in 1936, held in United States v Butler,191 that:
When an act of Congress is appropriately challenged in the courts as not
conforming to the constitutional mandate, the judicial branch of the Government
has only one duty—to lay the article of the Constitution which is invoked beside
the statute which is challenged and to decide whether the latter squares with the
former. All the court does, or can do, is to announce its considered judgment
upon the question.

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The decision, which indicated an interpretvist tack in addition to demonstrating disinclination to
encroach on legislative and executive policy prerogatives,193 addressed concerns interpretivists
have maintained as to the consequences of judges restricting the democratic process without a
clearly articulated constitutional authorization. The investment into constitutions and statutes of
new and unintended meanings, strict constructionists contend, threaten the legitimacy of the
courts and the balance maintained amongst the three branches of government.194 Chief Justice
Rehnquist warned that:
Once we have abandoned the idea that the authority of the courts to declare laws
unconstitutional is somehow tied to the language of the Constitution that the
people have adopted, a judiciary exercising power of judicial review appears in a
quite different light. Judges then are no longer the keepers of the covenant;
instead they are a small group of fortunately situated people with a roving
commission to second guess Congress, state legislatures, and state and federal
administrative officers concerning what is best for the country.195
J. Clifford Wallace has argued that a concern for legal predictability, facilitated by a strict
constructivist consideration of the constitutional text fosters restraint and speaks to judicial
economy. He marks that “courts are cost-effective, for the most part in settling dispute. They
become cost-ineffective when asked to re-engineer social structures and reorganize social
priorities.”196 Further, it is consistent with, and complementary to the balance of power among the
three branches; accomplishing this by minimizing inter-branch interference by the judiciary and
exhibiting a deferential posture. To act otherwise creates unpredictability on the part of the
judiciary that makes courts and their rulings “a moving target,” to the consternation of the other
independent branches.19' Making particular note of the latter point, Wallace believes that restraint
in application and interpretation also serves to protect the independence of the judiciary, opining
that “when courts become engaged in social legislation, almost inevitably voters, legislators and
other elected officials will conclude that the activities of judges should be closely monitored.”198
By avoiding the temptation to “spin twentieth century sociology out of eighteenth or nineteenth
century language,” judges will correctly present as neutral expounders of justice under the law as
opposed to moral reformers and social crusaders.199 Wallace does pause to acknowledge that an

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activist court and a broad interpretive style is not the province of any political orientation, noting
that “many who deplored the activism of economic substantive due process earlier in [the
twentieth century] praised the activism of the Warren Court.”200 Observing that “virtue seemed to
be dictated by result;” in application, anything beyond discerning the cognitive meaning of
constitutions was “merely a rationalization of a willingness to use whatever means are expedient
to reach one’s preferred results.”201 Diver remarked that:
Arguably, judicial protection...aided people the courts attempted to protect [and]
curtailed most of the worst of institutional abuses. Such success however might
have come at the price of judicial legitimacy...courts deiive a great deal of their
power from the social perception that judges are neutrally and fairly applying the
law, not imposing their own personal political opinions...as public law moved
judges from a role as passive, impartial arbiters toward the position of
powerbroker it threatened court legitimacy.202
Horowitz asserted that finding legal justification beyond the text inevitably leads the courts into
ventures of institutional reform litigation, an exercise they are inadequately structured to address.
Maintaining that judges are trained to be “generalists,” he argued that in attempting to ascertain
“social” facts in lieu of “legal” facts, jurists involve themselves in interpretations of the social
sciences and produce decisions with a limited understanding of the possible consequences.203
Encroaching on the domain of the legislative and executive branches, institutionally designed to
deal with these concerns only served to threaten judicial legitimacy.204 Commentators have
suggested that this trend has forced courts to make increasingly political judgments while
attempting to construct remedies, and gauging the extent of same has become “a complex and
contingent exercise in prediction.”205 Considering intervention and possible consequences, Posner
remarked that, “those judges who believe...in judicial restraint... will consider ignorance of the
consequences of a challenged governmental policy that is not completely outrageous as a
compelling reason for staying the judicial hand in the absence of sure guidance from the
constitutional text...[while] activists will plow ahead.”i06 Further, he observed that for the strict
constructionist, “it shouldn’t be enough that the litigant claiming a constitutional right has the
better of the arguments... the alleged violation of the constitution has to be certain.”207

9.3
The elusive nature of that “certainty” underscores the rationale for a non-interpretive
appreciation of constitutional considerations. Within the neutral construction of constitutional
theory' this school, in concurrence with interpretivists, holds that the jurist act in an objective
manner, eschewing any reference to personal preference, philosophy or bias when interpreting the
constitutional text. As noted, those of the interpretivist school contend that these “references” are
precisely what non-interprevisits introduce into the judicial exercise. Peretti has observed that
“the central issue of contention among neutralist scholars is not whether judges should be
principled, but what is the proper source of constitutional values which the Court may
legitimately advance in opposition to majority desires.”208 The differences between the two
schools again returns to “defining those boundaries between the apolitical judicial sphere, where
the people can and should be told, ‘No,’ and the democratic sphere, where the people should have
free rein.”209
Non-interpretivists stress the need to look beyond the plain text, calling upon courts to
advance society’s fundamental values, even if not clearly articulated in the document. In essence,
courts were tasked with identifying core constitutional values in the abstract, then applying in
concrete decisions. Despite the operative premise that these fundamental rights exist independent
of social consensus or a contemporary popular appreciation, the question remains as to how to
instruct courts how to distinguish and apply them. 210 Tribe had stressed “rights of privacy and
personhood,”211 while Wellington has advocated a reliance upon a conventional morality.212
Richards has spoken of “human rights” with a particular emphasis upon “rational liberty;” a
denial of which is evidenced “when the community has unnecessarily infringed on conduct
generally considered to be essential to the rational self-governance of some persons.”213 In light
of this marker, courts should be cognizant of those rights “integral to the rational self guidance of
most persons,”.../.e., rights addressing education, voting, free speech, and treatment by the
criminal justice system.214 Karl has proffered the “principle of equal citizenship” which calls for

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the recognition that “each individual is presumptively entitled to be treated by the organized
society as a respected, responsible, and participating member.”215
The literature presents with a greater degree of substantial accord as to the rationale of a
non-interpretive constitutional theory. Considering the reasons advanced for going beyond
“original intent” Sowell cited that:
(1) there has been significant social changes since enactment, [and] (2) there are
moral questions involved, only imperfectly addressed or cryptically suggested by
the explicit language of the enactment and, more generally, the enactment...is
not to be read as a set of rules but as an expression of values, to be given specific
content in the particular case by the jurist.216
Shea has also noted objections to the interpretivist school, writing that:
The principal dissatisfaction with original intent theory is twofold. First, although
courts ordinarily purport to follow the original intent of the constitutional
language, it is widely believed that decisions are really made on the basis of the
judge’s view of social policy as applied to the case before them. Thus, it would
be more honest and less circumlocutory in a particular case to advance simply the
social concerns involved as a basis for the decision. The second objection to the
theory is that it often prevents the judiciary from achieving its proper goal of
doing justice in a case before it because of restrictions imposed by the dead hand
of two hundred years ago.217
Dworkin has rejected strict construction because it limits constitutional rights, “to those
recognized by a limited group of people at a fixed date in history.”218 Further, “it seems plainer
that we have no fixed concept of group intentions,” nor any way of determining “which aspects of
individual mental states are relevant to group intentions.”219 Dworkin argued that conflicting
interpretations present on their own merits, thus “judges must decide which of the...competing
justifications is superior as a matter of political morality... [and rule] so as to further [the superior]
justification.”220 Of the countermajoritarian concerns, he opines that “a more equal society is a
better society even if its citizens prefer inequality.”221
This tack implicitly acknowledges that extrinsic meanings are frequently preferable in
application even if the intrinsic meanings were clear. It has been ventured that non-interpretivist
scholars “admit to speaking for a much narrower constituency among their contemporaries...[but]

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do anticipate vindication from later and presumably more enlightened generations.”272 The
argument can be advanced that Justice Thurgood Marshall went as far as making the “test” what
the public would believe if properly informed.22J
The non-interpretivist school posits that the construction of constitutions compel a
broader interpretive approach. In consideration of these documents, Ely observed that they
“contain several provisions whose invitation to look beyond their four comers...cannot be
construed away.”224 Hufstedler has ventured that constitutions are the product of a myriad of
compromises necessary to secure agreement in the process of enactment. These “creative
ambiguities” often present as grand, ambiguous phrases, yet without them, constitutions would be
reduced to “mere parchment under glass.”225 Hufstedler notes that “the very elusiveness of their
content has made it possible to shape and reshape constitutional doctrine to meet the needs of an
evolving, pluralistic, free society. Precision has an honored place in writing a city ordinance, but
it is a death warrant for a living constitution.”226 The absence of specificity has not been lost on
proponents of the interpretive theory; Chief Justice Rehnquist acknowledged that, “the
Constitution is in many of its parts obviously not a specially worded document but one couched
in general phraseology. There is obviously wide room for honest different of opinion over the
meaning of general phrases....”227 Justice Holmes is often cited for his characterization of a
“living constitution.” In Missouri v. Holland,228 he said:
When we are dealing with words that are also a constituent act, like the
Constitution...we must realize that they have called into life a being the
development of which could not have been foreseen completely by the most
gifted of its begetters. It was enough for them to realize or to hope that they had
created an organism; it has taken a century and has cost their successors much
sweat and blood to prove that they created a nation.229
Chief Justice Marshall commented that in considering the document justices must be continually
mindful that “it is a constitution we are expounding...a constitution intended to endure for ages to
come, and consequently adapted to the various crises of human affairs.”250 Chief Justice William
Howard Taft considered a strict constructionist approach to be the theory of “one who does not

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understand the proper administration of justice... [given that] new conditions arise which those
who were responsible for the written law could not have had in view.”231 The Supreme Court, one
year after delivering its opinion in Butler, spoke to the necessity of discretion; when ruling on the
Social Security Act of 1937 the Court wrote that, “nor is the concept of general welfare static.
Needs that were narrow or parochial a century ago may be interwoven in our day with the well¬
being of the nation. What is critical or urgent changes with the times.”232 This expansive
appreciation of constitutional indeterminancy reflected the influence of the legal-realist reform
approach that gained purchase in the early Twentieth Century; a theory that dismissed common
law jurisprudence in favor of utilizing extralegal information relevant to the case. It is this judicial
exercise over which interpretivists, whom recognize the general nature of constitutional texts, part
company with non-interpretivists.233
Non-interpretivists stress the role of the courts divorced from the democratic process; a
critical distinction for the school has not staked the claim that the theory of review is legitimate
from a democratic standpoint. It is argued that to exercise restraint in interpretation and
application and thus withhold assistance to aggrieved litigants would serve to diminish the
relevancy of the courts and deny society the benefits courts are uniquely positioned to provide as
a non-elective institution. Of this reasoning, Peretti has remarked:
Their point is that our excessive concern with the court’s legitimacy in a
democracy problem leads to a weakening of the [constitution] as a source of
moral guidance and moral legitimacy...[non-interpretivsts] emphasize the
myopia of legislatures in responding in immediate crises, momentary passions,
and the narrow and selfish demands of wealth and well-organized interest groups.
We cannot expect moral guardianship and leadership from legislatures, but we
can and should expect it from [the courts]...non-interpretive review, democratic
or not, serves a vital social function....234
Miller has asserted that “any polity must have some way—some instrumentality—-to articulate
values and principles...[judges] in sum, can act as a national conscience for a populace whose
reach has always exceeded its grasp.”235 In a detailed defense, he explained that “consensuses
simply do not exist in a rapidly changing society...so the values...must be externally and

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explicitly articulated.”i36 Professor Miller reasoned that in “a secular society...some central
symbol of authority and wisdom must be substituted for the Deity...that is the role of the
[courts]....”237 This role is not confined to interpretation but, by necessity embraces remediation
for while judges must “state norms toward which the people should aspire,”238 they are also
tasked with developing remedies to correct the wrongs they have identified.2'9 Bickel believed
“their insulation and the marvelous mystery give courts the capacity to appeal to men’s better
natures, to call forth their aspirations, which may have been forgotten in the moment’s hue and
cry.”240
Nor surprisingly, this platform has drawn the concentrated ire of interpretive scholars.
Bork argues that “courts accomplish their ends by a combination of coercion and moral
persuasion. Courts inevitably assume the role of moral teachers. Normative values pronounced,
even falsely, in the name of a constitution often come to be accepted by the public....”241
Employing an historical perspective to challenge this characterization of judges as heralds of a
nation’s values, McCleasky asked, “can we really be sure that it was Marshall or Taney rather
than Clay or Webster who did the better job of articulating values? Which of the Civil War
Justices excelled Lincoln in voicing the hopes and goals of the republic?... which Justice...was
better than Franklin Roosevelt at communicating our ideals?”242 Gaglia recognized the integral
role moral values played in the justification of constitutional theories, albeit from a perspective at
odds with the aforementioned non-interpretivist scholars. He maintained that “the power of our
judges can...be said to be based on their relative freedom from moral—as well as political—
restraints applicable to other wielders of governmental power....”24j Rather than articulating
societal norms, Gaglia charges that this posture provides “support [for] findings of
unconstitutionality, [for activist] judges are in effect required to demonstrate what cannot be
demonstrated... ,”244

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Non-interpretive theorists rely on the eloquent defense provided by Justice Benjamin
Cardozo; articulating the role of the judiciary in protection of fundamental values and the
illumination of enduring ideals, he wrote:
Great maxims, if they may be violated with impunity, are honored often with lip
service, which passes easily into irreverence. The restraining power of the
judiciary does not manifest its chief worth in the few cases in which the
legislature has gone beyond the lines that mark the limits of discretion. Rather we
find its chief worth in making vocal and audible the ideals that might otherwise
be silenced, in giving them continuity of life and of expression, in guiding and
directing choice within the limits where choice ranges. This function should
preserve to the courts the power that now belongs to them, if only the power is
exercised with insight into social values, and with suppleness of adaptation to
changing social needs.245
Whether couched in aspirational tones, or stark real politik, both of these neutral
constitutional interpretation theories profess rationales that exist outside the individual or
summated personal judgments of the justices. While one school points to a concrete textual basis,
and the other cites fundamental values, natural law or theories of justice, the “source of these
principles exist apart from the personal arbitrary biases of the justices....”246 Lurking beyond this
legal foundation is an additional school that questions the very presence of substantive legal
reasoning.
Legal autonomy, defined by Johnson as the notion that “there is a method of legal
reasoning that can generate outcomes in controversial disputes independent of the political or
economic ideology of the judge,”247 has been challenged by the critical legal studies movement.248
Although tracing its origins to legal realism, critical studies moved beyond realism’s dismissal of
a formalistic approach to the law and its focus on extralegal sources. Llewellyn and Franke, two
legal realism theorists developed the thesis that it was a judge’s personal preference that was
paramount in the interpretive process.249 In challenging the dominant and normative approach to
judicial decisionmaking, they argued that judges often base their rulings on subjective preferences
and biases; manipulating precedent and texts to fit a desired result. Schlesinger termed the
understanding that a judge chooses his results, and reasons backward, the “Yale Thesis.”250

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Describing this logic, he stated that “a na'ive judge does this unconsciously and conceives himself
to be an objective interpreter of the law. A wise judge knows that political choice is inevitable
and makes no false pretense of objectivity and consciously exercises the judicial power with an
eye to social results.”251 Placing critical studies within the context of modem liberal theory,
Tushnet observed that “in its political institutions, libera! society allocates will to the legislature
and reason to the courts; but the courts are staffed by individuals who can be willful.”252 Although
neutral constitutional theory attempts to constrain this “willfulness,” Tushnet posits that they fail
for “reason cannot limit judges.”253
Critics assert that “constitutional decisions are incapable of being discovered and
defended in a coherent and value-neutral value.”254 Marking that constitutional texts are
“radically and hopelessly indeterminate,” the meaning of vague and conflicting provisions cannot
be “discovered or defended in any objective way.”255 While echoing the school’s skepticism
about moral absolutes and their place in jurisprudence, Brest writes of conventional constitutional
theory that, “the controversy over the legitimacy of judicial review in a democratic polity—the
historic obsession of normative constitutional law scholarship—is essentially incoherent and
unresoivable.”256 Considering the consequences of this cynical appreciation of legal reasoning
and interpretation, Bickel lamented that it “is a reality, if it be true, on which we cannot allow the
edifice of judicial review to be based, for if that is all that judges do, then their authority over us
is totally intolerable and totally irreconcilable with the theory and practice of political
democracy.”257 For other scholars, critical theory threatens to rend the “fabric of legal logic.”258
“Indeterminancy” is also evidenced in the characterization of courts as “activist” or
“restrained,” despite the stridency with which these labels are applied; a dynamic affirming
Montaigne’s axiom; “Nothing is so firmly believed as that which is least know.” Commenting on
the numerous and diverse concepts of activism, Canon opined that “judicial activism is a central
if not well-informed features of the American system. As such it has long been subject to both
political polemics and scholarly analysis...thus, the concept...has little common meaning; it has

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encompassed whatever a given writer or reader conveyed or inferred.”259 With that understanding
he offered a framework to facilitate “common discussion and analysis.” Canon’s model marked
six dimensions, the first of which was majoritarianism, defined as the degree to which policies
adopted through the democratic process are judicially negated. Considering this category, he
found that it was the most “frequent criterion used in assessing” judicial activity. On the
continuum between restraint and activism, this measure considers the rationale established to
declare a statute or administrative regulation deficient.260 Interpretive stability gauges the degree
to which earlier court decisions, doctrines or interpretations are altered or overturned. An explicit
overruling of an earlier finding challenges the conception of “the law as an immanent and
constant entity which judges merely discover.”261 Interpretive fidelity is the dimension of Canon’s
model which measures a court’s construction of particular provisions of the constitution. He notes
that “activism occurs when an interpretation does not accord with the ordinary meaning of the
wording of the provision and/or with the known, consensual intentions or goals of its drafters.”262
A moderate turn addresses a court according “a constitutional provision a new interpretation
which, while not contrary to its wording or implications, add on another and perhaps
controversial meaning.”263 The fourth factor, substance-democratic process distribution,
distinguishes between court decisions which relate to the integrity of the democratic political
process and those which construct substantive policy. Of the former, he writes that “these involve
freedom of expression, the franchise, conduct of elections, and the nature of representation. Such
decisions do not directly affect substantive policies. Rather they relate to citizens’ opportunities
for input into the policymaking system.”264 Explaining specificity of policy, an additional
criterion, Canon wrote:
Traditionally, judicial incursions into public policy were of a negative kind. A
plaintiff challenged the legitimacy of some law or government policy and the
court, if it agreed, voided the law or enjoined the policy. Such decisions left
legislators or administrators free to pursue another approach in their efforts to
handle a problem. While nullification is still a prominent characteristic of judicial
activism, in recent years courts have become positive policymakers as

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well...they have begun to command governmental agencies to undertake certain
policies, sometimes in minute detail.265
Between the two resides “permissive policy” findings; decisions which in effect declare “you can
do this if you want to, but you are not constitutionally required to do it.”266 The availability of an
alternative policymaker is the sixth and final dimension of Canon’s model. This factor is
introduced when a court has endeavored to make policy, thus presenting the question; “to what
extent could another agency make policy similar to that found in the court’s decision?”267
Shaping the answer is the consideration of whether another agency has the authority to make
policy, and if so, is it politically feasible, and is another agency “better positioned in terms of
expertise and access to information to make policy than is the court.”268 Canon details that this
does not necessitate that the “alternate policymaker has to arrive at the same policy as embodied”
in the court’s decision; rather after being subjected to “debate and political pressure” there
remained a “reasonable likelihood that an alternate policymaker could have come to the court’s
position.”269
Writing that the debate over judicial review has become irrelevant “because of the
inappropriate frame of reference which has served as a guidepost for constitutional scholars,”270
Schick sought to address that default. Expressing sentiments similar to Canon’s, he found the
activist-restraint debate to artificial, “even contrived.” Schick attributed this to the convenience of
applying easily understood labels to distinguish judges, “much the same way as ‘liberal’ and
‘conservative’ simplify the world of politics.”271 Schick argued that nuances are sacrificed as
judicial review is treated as “coextensive with activism.”272 He then embarked upon identifying
the elements of activism, proposing that these markers be utilized to differentiate gradations of
activist courts and justices."73 In an exercise that chartered the timbre of judicial opinions, Schick
noted four dimensions, or characteristics of activism. Of the first, he posited that “judicial
activism in its fullest sense means more than the use of judicial power...essentially activism is the
reliance on the judicial role to establish new law...to legislate.”274 Second, he asserted that

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activist courts and justices betray their orientation by issuing “result-oriented’' decisions that were
noteworthy for the “transparency of their efforts to fashion the law to meet their policy
preferences.”27 Schick argued that judicial activism is premised on the notion that “there is (or
should be) a judicial remedy for social wrongs”276 brought before the court. Finding these
opinions to “ring out with declarations of judicial obligation to guard the constitution, promote
justice, abort evil, protect liberty [and] guarantee liberty,” he detected the conviction that “laws
must be adapted by judicial means to the imperatives of one or another philosophy, and justices
must do their duty.”277 Finally, Schick concluded of these opinions that “activists tend to preach,
to lecture their fellow judges or the public about good and evil, right and wrong... [the judges] did
not exercise restraint in language, rather they engaged in rhetorical excesses, and they allowed no
quarter to the opposing viewpoint.”278
A third model avoids the subjective nature of Schick’s treatment, prescribing an analysis
that applies irrespective of the substantive content of the policy or written opinion at issue.
Schubert, arguably far better known for his development of systematic and behavioral approaches
to the judiciary, identified a functional theory that considered activism in terms of disharmony
and restraint in terms of harmony as reflected in the judiciary’s relationship with the political
branches. The framework concisely provides that “from a functional point of view [a court] is
activist when its decisions conflict with those of other policy-makers, and [a court] exercises
restraint when it accepts the policies of other decisionmakers.”279
The contemplation of judicial review and constitutional interpretive theory, and
characterizations of courts and jurists as activist or restrained, particularly in reference to
education finance litigation, must be drawn through the prism of state courts and constitutions.
It has been suggested that considerations of state judiciaries and state constitutionalism has
heretofore been “intellectually isolated” in public law scholarship.280 Winterscheimer remarked
that “the primary focus on constitutional law in the United States has been the Federal
Constitution and its judicial interpretations,”281 while Linde commented that “general

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constitutional law courses...create the impression that contemporary majority opinions and
dissents in the United States Supreme Court exhaust the terms as well as the agenda of
constitutional litigation."282 However, attention to this dimension of American jurisprudence has
increased within the context of the “judicial federalism."28’ In response to the restraint exhibited
in federal courts in reference to individual rights and protections, state constitutions and courts
experienced a reemergence in the legal consciousness.284 Justice Brennan, criticizing the trend
toward lesser protections afford by the Court pointed out that state courts had been “stepping into
the breach.” In stimulating a heightened acknowledgement of state constitutional law, the Justice
wrote that:
State constitutions...are the font of individual liberties, their protections often
extending beyond those required by the Supreme Court’s interpretation of the
federal law. The legal revolution which brought federal law to the fore must not
be allowed to inhibit the independent protective force of state laws—for without
it, the full realization of our liberties cannot be guaranteed.285
Just what “judicial federalism,” or the “new judicial federalism” entails has not yet been clearly
and definitively articulated.286 Either in the structural context, as in the delegation of issues
between federal and state courts, granting greater responsibility to the state courts, or the
increased dependence on state constitutions to protect individual rights, judicial federalism is an
evolving phenomenon.28' This study is best served by the definition of “new judicial federalism”
provided by Blanchard, who wrote:
Proponents of the new judicial federalism envision vigorous state constitutional
protections of individual rights implicating an increase in the scope of judicial
power among state courts. The new judicial federalism requires that the sphere of
state courts’ influence expanded to compensate for the perceived restraint
exercised by the federal judiciary, causing state courts to enhance their review of
legislative measures under a revitalized state constitution. The new judicial
federalism has thus stirred the coals of an old problem—the legitimate extent of
judicial review—in the (renewed) context of state constitutional jurisprudence.288
When contemplating the “legitimate extent of judicial review,” in the context of what Justice
Brandéis referred to as the “laboratories of democracy,”289 cognizance of the unique nature of
these fifty venues is integral to any appreciation. The role of state courts within the state political

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and administrative system, is contingent upon the formal and informal institutional arrangements
which exist in relationship to the other branches of state government, and state constitutional and
statutory law. These contingencies are no less cogent to the application of justiciability doctrines
within state judiciaries.
Hershkoff has marked that “many state courts draw heavily from justiciability principles
to determine whether they can and should resolve particular disputes. Other state courts, however,
diverge from Article III doctrine....”290 The concerns underlying the federal model are not
automatically apposite to state courts as these bodies exercise jurisdiction in areas never
contemplated for a federal court; therefore categorizations of judicial review on a continuum of
activism and restraint premised on Article III291 principles may present as mischaracterizations.
The treatment of standing in federal and state courts is frequently accorded divergent
applications. To have standing in federal court, the plaintiff must demonstrate “not only that the
[challenged] statute is invalid, but that he has sustained or is immediately in danger of sustaining
some direct injury as the result of its enforcement.”292 While this understanding of the principle is
based upon the “case-or-controversy” requirement in Article III of the Federal Constitution, the
source of standing rules varies from state, as does their specific content.293 Although some states
have relied upon the federal standard, most have utilized a more liberal approach. For example,
in Flast v. Cohen,294 the Supreme Court ruled that the payment of taxes does not ordinarily serve
to confer standing on a taxpayer to challenge a particular policy. In contrast, the majority of states
generally award standing to taxpayers, often without demonstrating a direct injury or, in some
instances without having to show that their tax burden would be affected.295 The Delaware
Supreme Court opined that “a taxpayer has a direct interest in the proper use and allocation of tax
receipts. That interest gives the taxpayer a sufficient stake in the outcomes of the suit to allow
him to challenge improper uses of tax funds.”296 The Ohio Supreme Court stated that “state courts
need not become enmeshed in the federal complexities and technicalities involving standing and
are free to reject procedural frustrations in favor of just and expeditious determination on the

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ultimate merits.”297 The Louisiana Constitution of 1974 moves beyond limitations structured on a
“case-or-controversy” principle, extending jurisdiction to “all civil and criminal matters.”298
Hershkoff has observed that states provide citizens, taxpayers, and legislators forums to address
state constitutional issues, a grant which does not presuppose that the legal right they seek to
enforce or identify is correlative of a legal duty owed to them.299 Fallon posits that the liberal
treatment of standing demonstrates a state’s consideration of plaintiffs aspirations “to secure
establishment of legal principles which touch others as directly as themselves and that are valued
for moral or political reasons independent of economic reasons.”300
Other limits of justiciability that are evidenced in Article III courts are also absent or
attenuated in state judiciaries. It has been observed that “state courts more typically find it their
duty to resolve constitutional questions that the federal courts would consider moot, elaborating
constitutional norms as a matter of public interest on the view that the other branches will benefit
from receiving authoritative adjudication for further guidance.”301 The Indiana Supreme Court
ruled that “[wjhile Article III of the United States Constitution limits the jurisdiction of federal
courts to actual cases and controversies, the Indiana Constitution does not contain any similar
restraint. Thus, although moot cases are usually dismissed, Indiana courts have long
recognized...an exception to the general rule when the case involves a question of great public
interest.”302 Whereas federal courts cannot render advisory opinions, courts in several states play
an advisory role, allowing them to articulate constitutional principles while “effectively
remanding disputes to other branches.”303 The constitutions in Colorado, Florida, Maine,
Massachusetts, Michigan, New Hampshire, Rhode Island, and Dakota, explicitly authorize the
judiciary to render advisory opinions when called upon, to the executive and legislative
branches/04 In the absence of constitutional authorization, state courts in Alabama305 and
Delaware306 are statutorily assigned advisory roles, while in North Carolina the power to issue
advisory opinions is the result of court decisions.307 In other state judiciaries, courts have treated
the option to provide advice as a matter of inherent power. Because an advisory opinion is non-

106
binding, it is not considered a holding of the court, but as an expression of the views of the
justices and considered an extrajudicial function. The presumption exists, however, that the
requesting branch will not respond in a manner inconsistent with the opinion.308 Carberry found
that these opinions primarily address the mechanics of state governance, thus directly involve the
courts in “day-to-day political issues.”309 Hershkoff commented that this features has become “an
accepted feature of policymaking,”310 and political scientist Thomas Morris observed of Virginia
that, “whenever a major piece of legislative policy has been at stake, the customary practice of the
state has been to initiate a friendly suit testing the constitutionality of the act.”311
Separation of powers concerns which prompted the “political questions” doctrine
applicable throughout the federal judiciary have seldom affected state courts.312 Abrahamson and
Hughest analogized the relationship between the judiciary and legislature to a “dance” in which
“despite their conspicuous differences, the two have enough in common to learn from each other
and work together in a single purpose.”^1' They further noted however, that “in spite of the shared
responsibility for the quality of statutes, the judiciary and the legislature rarely move together
with a sense of common purpose. Judges and legislators have different institutional concerns
regarding statutes, resulting in a working relationship that could be described as atonal, if not
dissonant.”314 In addition, the heritage of common law adjudication still shapes the legal
landscape of state judiciaries; as Kaye remarked “the inherent, yet principled flexibility of the
common law remains the defining feature of the state judicial process today.”315 Given this, the
New York Court of Appeals Chief Justice observed that “state courts effectively make law, and
so by the reference to social policy, not only when deciding traditionally common-law cases but
also when faced with cases that involve difficult questions of constitutional and statutory
interpretations.”316 The literature reflects the continued vitality of the common law, one scholar
observing that while involving state courts in social and economic policymaking, it “effectively
blurs the lines of separation of power between and within state institutions.”317 Further, because
state constitutions include “positive rights and regulatory norms, their texts explicitly engage state

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courts in substantive areas that have historically been outside Article III domain...[thus] state
constitutions require lawmakers to effectuate highly specific social goals.”313
State courts in the early republic effectively functioned in a legislative role. Horwitz
found that “the common law performed at least as great a role in legislation [as legislatures] in
underwriting and channeling economic development...common law judges regularly brought
about the sort of far-reaching changes that would have been regarded.. .as entirely within the
power of the legislature.”319 During the Twentieth Century the American legal system moved
from one “dominated by the common law, divined by courts, to one in which statutes, enacted by
legislatures, have become the primary source of law.”320 The expansion of state legislative
authority did not completely preclude state court involvement in governance. Tarr remarked that
while “expanding legislative and administrative output curtailed common law policy making, it
has increasingly involved state supreme courts in the tasks of statutory interpretation and
oversight of administrative activity.”321
The institutional character of state judiciaries and the political branches, in conjunction
with an appreciation of countermajoritarian issues that differ from that of federal courts, accounts
in large measure for the role of courts in state governance; Linde observ ed that “there are hardly
any state analogies to the self-imposed constraints on justiciability, ‘political questions,' and the
like that occupy students of the Supreme Court.”322 A federal court ruled in Risser v.
Thompson,323 that states were not required to “imitate the separation of powers prescribed for the
federal government.”324 In reference to the freedom of state courts to rest their decisions and
activities wholly or partly on state law was countenanced by Justice Brennan who wrote that:
Decisions of the Court are not, and should not be, dispositive of questions
regarding rights guaranteed by counterpart provisions of state law. Accordingly,
such decisions are not mechanically applicable to state law issues, and state court
judges and the members of the bar seriously error if they so treat them.325
State courts are often involved in administrative and oversight tasks that would not be
contemplated at the federal level. As an example, Hershkoff observed that in functioning as

108
“working partners” with the legislative branch, courts are involved with voter redistricting plans,
allocating the powers between the state and localities as to articulation of home rule and
“participation in decisions involving fiscal matters, budget practices, [and] the scope of state
government authority.”326 Tarr found that in state high courts “the most recurring issues...[were]
the instrastate distribution of power, the scope of state government authority, and the relation of
the state to economic activity.”327
The federal justiciability doctrine, particularly in regards to separation-of-powers, is
premised upon a particular set of institutional arrangements and reflects a judgment as to the
relative competence of the other branches. It has been ventured that “Congress is said to enjoy an
advantage in some areas relative to Article III courts because it can control its agenda, research
issues, and compare alternatives. Justiciability doctrine reflects an attitude of deference toward
the legislative branches’ assumed superior policymaking capacity....”j28State constitutions
generally do not mirror the Federal Constitution’s level of trust in legislative and executive
decisionmaking and administration. Whereas the Constitution affords Congress and the Executive
broad latitude and discretion in policymaking, state constitutions in contrast, “impose not only
substantive, but also procedural requirements on legislative activity.”329 Holcombe observed that
“the political importance of the state courts was enhanced directly by popular distrust of the state
legislatures, as well as indirectly through the increase of constitutional limitations upon
legislative powers and procedures.”330 Tracing an historical origin, Williams found that:
Last minute considerations of important measures, logrolling, mixing substantive
provisions in omnibus bills, low visibility and hasty enactment of important and
sometimes corrupt legislation, and the attachment of unrelated provisions to bills
in the amendment process—to name a few' of these abuses—led to the adoption
of constitutional provisions restricting the legislative process.331
Concerns still remain as many state legislative offices are “part-time” jobs raising conflict of
interest as well as institutional capacity questions. A recent analysis of state legislatures revealed
that they “have run the cycle of development, from institutional revitalization in the 1970s and
1980s to institutional decline in the 1990s.”332 Hershkoff asserted that “Article Ill’s preference to

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legislati ve lawmaking ignores the fact that a great deal of state and local lawmaking is generated
not by state legislature, but rather by state and local units that combine legislative, executive,
judicial, administrative powers in a single body (or a plurality of such bodies)....”344 Recognizing
for example, the presence, and authority, of “zoning boards, business improvement districts,
sewage districts, tax-increment finance districts, and licensing,”334 Kariel observed,
It is easy, at the state level, to exemplify the making of public law by
occupational, would-be professional, and professional associations—associations
whose leadership is self-serving and whose policies are unrepresentative of their
memberships...[decisions] in the fields of medicine, law, public health,
sanitation, zoning, recreation, education, religious, observances, sexual
practices—have assumed public character when vested with public authority.335
Power within the states is also diffused horizontally among the branches “as well as
vertically between the state and myriad local branches.”336Shirley Abrahamson has written that
the governance structure in the states “reflects a principle of shared, rather than completely shared
powers...a system of separateness with interdependence, autonomy with reciprocity.”337 In
numerous instances, state courts share oversight and administrative authority with the executive
branch over areas generally associated solely with the later branch, i.e., “family court mediation
programs, drug courts, domestic violence programs, and victim assistance programs....”338
Commentators have noted the emergence of “therapeutic justice,” a notion that adjudication must
be seen within the context of the larger community and social needs, a “theme for courts
concerned about public trust and confidence....”339 As Peters described:
In undertaking these programs as part of the judicial social service agenda,
judges and judicial staff fill the roles that historically would have been performed
by private groups or other branches of government. These roles have come to the
judiciary more by way of default than by design. The judicial engagement
usually results from intensive consultation and negotiation with the executive and
legislative branches. Whatever the relevant pros and cons of judicial
participation, concern for separation of powers has not been high on anyone’s
listâ„¢
State supreme courts, through constitutional and statutory341 authority, are accorded
rulemaking powers, the most significant of w'bich is the power to regulate court procedures and
the legal community; in addition to the authority to discipline members of the bar and coordinate

110
expenditures to conduct judicial operations.343 The exercise of these “inherent powers" requires a
coordinated relationship with the legislative branches. Friedelbaum observed:
Few powers have been more jealously guarded by courts than that of regulating
the practice of law. Yet, such authority has been shared with the legislature in the
exercise of the police power to promote the general welfare. For the most part,
the adoption of requisites for the practice of law has revealed a harmonious
relationship without major intrusion into judicial powers.343
In contemplating the role of inherent powers and judicial independence, it has been suggested
that, “because inherent authority gives state judges some control over court procedures and
judicial funding, possessing it may...protect state courts against popular backlash and legislative
retraction...[thus] providing a legitimizing wedge for state judicial authority for state judicial
activity....”344
State court regulation has also extended to the delegation of authority for appellate
review. Reflecting constitutional and statutory provisions, states differ as to the discretion granted
to the high court, generally exemplified through the institution of intermediate courts of appeal.
Tarr has noted that in some states, given the absence of these intermediate judiciaries, the
responsibility for review falls directly on the state supreme court, thus imposing an
“overwhelming burden of cases on state supreme courts.”345 Ffowever, in the greater proportion of
states with intermediate courts of appeal, courts are freed “to devote more attention to cases that
raise important policy questions.”346 A study of the introduction of these intermediate courts in
North Carolina found that it allowed the supreme court to assume “a position of true leadership in
the legal development of the state.”347 Carrington, et. al., proffered that granti ng a state high court
greater discretion over its docket influenced how the body viewed its role:
Discretionary review at the highest level...transforms the nature of the judicial
process. The high court is no longer merely reacting to disputes brought to it by
adversaries; it is selecting those disputes in which it chooses to participate.
Almost surely this has affected the self-perception of the judges of the high
courts, who tend to view themselves primarily as policymakers and secondarily
as conflict resolvers, thus reversing the traditional relationship between those
dual functions and taking leave of a fundamental assumption of the Common
Law. In sum.. .the architecture of the system tells the judges of the top court to be
creative.348

Ill
Tarr, observing the “increasing involvement of courts, particularly in recent decades, in
addressing issues with far-reaching consequences,and Kagan, in noting that courts had
become “less concerned with the stabilization and protection of property rights, more concerned
with the individual and the downtrodden, and more willing to consider rulings that promote social
change,’’350 both marked the implications for judicial independence. Of particular salience, both
for judicial independence and countermajoritarian issues concerning the judiciary is the selection
of state court judges and tenure. As noted, supra text, the lifetime tenure of Article III court
justices was, and remains, a point over which judicial review within the republic presents as
inherently undemocratic to critics. In contrast, the vast majority of state constitutions provide for
some form of popular input into the selection and retention of the state judiciary. Twenty three
states currently employ some version of merit selection; a system within which a judicial
nominating committee recommends candidates to the executive. After selection, and a period of
service the judge runs in an uncontested retention election. Virginia and South Carolina selects
state judges through legislative elections. Four states allow for gubernatorial selection with
legislative approval, while eleven states provide for partisan elections, and nineteen for non¬
partisan elections.351 This general treatment obscures the variations which present within the
states themselves. For example, Tarr has marked that in South Dakota, appellate judges are
selected through a merit system, while non partisan elections are utilized for trial courts; in
Michigan and Ohio, although the elections are non partisan, candidates are nominated in party
primaries. As of 2003, greater than 87 percent of state judges, at both the trial and appellate
court level are subject to some form of election in order to secure and/ or retain a position on the
bench.353 Whatever the form, Carrington asserted that, “elections tend to empower persons or
groups outside the judiciary to reward or to intimidate judges for their decisions, and thus io bend
the administration of the law.”354 Drawing a sports analogy, Justice John Paul Stevens remarked
that subjecting judges to popular election, “is comparable to allowing football fans to elect the
«355
referees.

The politicizing of the state judiciary, owing to the engagement of issues of intense
political interest, is exacerbated through the election process/36 The renewed interest in state
courts has escalated judicial elections from “polite affairs”357 to intense, expensive campaigns;
engendering concerns for judicial independence and objectivity. One legal scholar recently found
that:
The cost of [state court] campaigns is doubling almost every biennium so that
judicial candidates in several states are regularly spending millions, much of it on
spot advertising on commercial television prepared by highly paid craftsman
skilled in the art of disparaging public persons. Funds sufficient for such races
cannot be raised by small individual contributions but only by contributions of
sufficient size to confirm the widely shared suspicion that the donor expects
something in return. Also, the time and effort expended by judges in fundraising
can be a serious distraction from the work of the court that the judge is employed
to perform.358
In a survey of judges who ran in retention elections from 1986 to 1990, Aspin and Flail found that
15 percent indicated that they sought to avoid controversial cases and decisions as the election
approached.359 A Florida justice observed, “it was never contemplated that the individual who has
to protect our rights would have to consider what decision would produce the most votes.”360 Tan-
discovered while considering the role of interest groups and controversial issues brought into the
courts that “groups intensely interested in those rulings have sought to ensure that jurists
sympathetic to their views were on the bench or to defeat those justices who ruled contrary to
their views by galvanizing pubic sentiment against ‘offending’ jurists.”361 Additionally, Sheldon
and Maulé noted that “interest groups have discovered that contributions to court contests have a
pay-off similar to contributions to legislative races.”362 The recent decision by the United
Supreme Court in Republican Party of Minnesota v. White,'6'' which invalidated on First
Amendment grounds Minnesota’s “announce clause,” which forbid candidates from announcing
their views on disputed issues seems poised to further change the traditional conduct of judicial
races.364 Though popular election and the nearly absolute absence of tenure365 may alleviate
countermajoritarian fears they may work at cross-purpose with the institutional and traditional
characteristics of state courts that facilitate a active administrative and remedial profile. It has

113
been ventured the presence of election demands severely limits the role of state courts as
guardians of constitutional rights.366 Yet, former Oregon Supreme Court Justice Hans Linde
observed in a 1988 essay that “the active participation of state judges in the policy process is
much more taken for granted and much less controversial than the involvement of federal
judges....”367 To account for the phenomenon he opined that:
Most state judges are elected to or retained in office by popular vote, either
competitively or in retention elections. As elected representatives, like
legislators, they feel less hesitant to offer their policy views than do appointed
judges. The manner of their selection gives judges a defense against being
regarded as a “bevy of platonic guardians.”368
Commentators have made note that in state judiciaries, federalism concerns that occupy
Article III courts play no role in adjudication. Hershkoff opined that a state court’s decision
which affects only the people of the state, “enjoys a greater perception of democratic legitimacy
and local responsiveness than that of an unelected Article III ‘outsider.’”369 As compared to states
in the federal system, localities lack the sovereignty to deny the state if it seeks to reclaim
delegated powers, however as they do “wield considerable power...[they] generate the problem
of localism for state courts to address.”370 The literature emphasizes that the small communities
can be riddle with factionalism and “raw majoritarianism;” generating external effects for not
only minorities and the politically powerless but also for adjacent communities.371 Yet Neubome
has opined that the state courts may be more cognizant of, and responsive to, local concerns given
that they depend on judicial election.372 And decisions, even if unpopular, may be received with
“better grace.”373
The very nature of the state constitutions themselves distinguishes the role of the state
judiciary. Elazarhas commented that “state constitutions are important determinants of who gets
what, when, and how in America because they are conceptual and at times very specific
statements of who should get what, when and how.”374 Whereas the Federal Constitution is one of
limited and constrained authority, the state documents are plenary and inherent. Considering state
constitutions, a legal scholar has observed:

i 14
State constitutions resemble regulatory statures because they prescribe social and
economic policies, expressed in the language of positive rights, while according
to the [legislative branch] instrumental discretion to carry out the constitutional
mandate. These positive rights are not simply structural limits of governmental
power; they are also duties compelling government to use such power to achieve
constitutionally fixed social ends...By compelling the state to explicit public
goals, state constitutions compel state legislatures to enact policies that carry out
these goals, and thus alter the terms of political discourse...A shortfall in
enforcement may not simply be remitted to politics; it instead implicates the
judiciary in a collaborative process of elaborating the constitutional mandate.'7j
This collaborative process allows the state courts to contribute to public discussion of contested
issues, it having been suggested that the courts can serve an “agenda setting function.”376 As a
consequence, it has been ventured that judges are perceived as part of the political process, and
freed from federal constraints, are accorded greater “judicial space” within which to entertain
innovative, if controversial, remedies.377 Strengthening this judicial perception is the fact that
state court decisions are not “final” in the federal sense. In addition to court turnover through
popular election and term limits; the availability of the amendment procedure ensures that a state
court’s articulation of constitutional doctrine is not necessarily the last word. In what Wilkes
described “amendomania,”378 state constitutional amendments are a routine presence in the
political arena.’79 Whereas, the Federal Constitution has been amended only twenty-six times, the
Alabama Constitution has been amended 618 times since current adoption in 1901 and the
California and South Carolina constitutions have been amended 493 and 474 times,
respectively.380 A commentator offered that “because state constitutional amendments are
relatively ordinary events in a state’s political life state courts judges can demonstrate a greater
willingness to experiment with legal norms on the assumption that their judgments comprise only
the opening statement in a political dialogue with the other branches and people.”381
This dialogue is now occurring in an era of renewed interest in state constitutionalism and
the implications for the American judiciary as a whole. The convergence of autonomy state courts
enjoy and the constraints, or lack thereof, imposed by political exigencies and unique state norms,
position state judiciaries squarely within the broader “rediscovery” of state constitutions.

115
Gardner posited that “state constitutionalism...holds that a state constitution is the
creation of the sovereign people of the state and reflects the fundamental values, and indirectly
the character of that people.”^82 He added that “an important corollary of this proposition is that
the fundamental values and character of the people of the various states actually differ, both from
state to state and as between the state and national politics.”383 In a similar vein, Kahn has written
that the central premise of state constitutionalism “rests on an idea of state sovereignty,” that
views the “state as an already defined historical community, with a text that can be interpreted to
reflect the unique political culture of members of that community.”384 Stressing that uniqueness,
Kincaid remarked that “state constitution making allows citizens to institutionalize conceptions of
justice and quality of life,” while declaring “rights and priorities of rights [that are] indicative of
the different conceptions that...exist among Americans....”385 Distinguishing a divergent tack,
Shepard drew attention to the “constitutional dimension” as states entertained “novel issues,”
characterizing it as “the state’s diverse experiments in formulating innovative constitutional
principles—through both amendment and interpretation—to address next-generation fundamental
values involving such matters as the environment, education and dignity issues...it is the act of
creating new regimes for new issues.”386 Teachout cited this fundamental tension in a review of
the literature devoted to state constitutionalism. He observed that:
One view... the ‘expansionist’ view, sees the priman' goal of the movement as
that of expanding fundamental rights and liberties. Those who subscribe to this
view essentially see the state constitutional law movement as a vehicle for
keeping alive and advancing the activist tradition of constitutional
jurisprudence...The other view...the ‘independent state jurisprudence’ view
reflects a very different understanding of the state constitution law movement.
Under this second view, the ultimate objective is the creation in each state of a
jurisprudence that in uniquely expressive of that state’s own particular
constitutional heritage...the keystone is the development in each state of
jurisprudence that is faithful to that state’s particular constitutional heritage.387
Regardless of orientation, it has been suggested that the movement’s generation and
continued strength, “derives from the aspiration of state court judges to be independent sources of
law.”388 Conversely, as noted, supra text, state constitutionalism, cast within the context of

judicial federalism addressed the abdication at the federal level of an aggressive protection of
rights. Irrespective of either understanding, given that when new or “novel” issues arise, state
constitutions are usually “at the forefront,”J8 ; the consideration of education finance litigation
and the judicial profile embraces not only the environment within which state judiciaries operate
but also the unique constitutional texts they interpret and administer.
Notes
1 Alexis de Toqueville, Democracy in America. Yol. 1 290 (Knopf, 1945).
2 Federal Courts are referred to as Article III Courts given that the federal judiciary was
specifically addressed in Article III of the Federal Constitution. See infra note 5 and accompanying text.
3 G. Alan Tar, Judicial Process and Judicial Policymaking 281 (3rd Wadsworth, 2003).
4 See, e.g., Stephen P. Powers & Stanley Rothman, The Least Dangerous Branch? Consequences
of Judicial Activism (Praeger, 2002).
5 The Federal Constitution addressed the judiciary in Article III, which reads:
Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in
such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the
supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times,
receive for their services, a compensation, which shall not be diminished during their continuance in office.
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this
Constitution, the laws of the United States, and treaties made, or which shall be made, under their
authority;—to all cases affecting ambassadors, other public ministers and consuls;~to all cases of admirality
and maritime jurisdiction;—to controversies to which the United States shall be a party;—to controversies
between two or more states;—between a state and citizens of another state;—between citizens of different
states;—between citizens of the same state claiming lands under grants of different states, and between a
state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state
shall be party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, the
Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under
such regulations as the Congress shall make.
The trial of all crimes, except of cases of impeachment, shall be by jury; and such trial shall be
held in the state where the said crimes shall have been committed; but when not committed with any state,
the trial shall be at such place or places as the Congress may by law have directed.
Section 3. Treason against the United States, shall consist only in levying war against them, or in
adhering to their enemies, giving them aid and comfort. No person shall be conv icted of treason unless on
the testimony of two witnesses to the same over act, or on confession in open court.
The Congress shall have power to declare the punishment of treason shall work corruption of
blood, or forfeiture except during the life of the person attained.
U.S. Const, art. Ill; (Federal courts are often referred to as “Article III” courts).
6 Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 1 (2nd
Yale University Press, 1985).

117
7 Id. at 1, 15.
8 David M. O’Brien, Constitutional Law and Politics 25 (W.W. Norton Co., 1991).
9 Bickel, supra note 6 at 16.
10Id. at 18.
11 Alexander Hamilton, The Federalist #78, in, The Federalist Papers; Alexander Hamilton. James
Madison. John Jav 465 (Clinton Rossiter, ed., Mentor Books, 1961).
12 State v. Campbell County School District, 32 P.3d 325 (Wyo. 2001) at 340 (citing Robert
Yates).
13 Supra note 4 at 13.
14 Supra note 11 in The Federalist #81 at 484-85.
liId.
16 5 U.S. 137 (U.S. 1803).
17 Id. at 176.
18 Id. at 176-77 (emphasis added).
19 See Bickel, supra note 6 at 3-4.
20 5 U.S. at 177-78.
21 William Rehnquist, The Notion of a Living Constitution, in, 54 Texas Law Rev. 693 (1976),
reprinted in, Judges on Judging 126-27 (David O’Brien, ed., CQ Press, 2004).
22 Id. at 127.
23 Earl Warren, An Address to the American Law Institute (May 20,1959) reprinted in, T.C.
Clark, Random Thoughts on the Court’s Interpretation of Individual Rights, in, 1 HOUSTON Law Rev. 75
(1961).
24 Shannon Stimson, The American Revolution in the Law: Anglo American Jurisprudence Before
John Marshall 141 (Princeton University Press, 1990).
25 Supra note at 467-68.
26 Id.
27 Warren Burger, The Doctrine of Judicial Review, Presidential Address, Bentham Club,
University College, London, England, (1 February 1972), reprinted in,, Judges on Judging 8,10 (David
O’Brien, ed., CQ Press, 2003).
28 2 Dallas 304 (U.S. 1794).
29 Id. at 309.
J° 1 Virginia Cases 20 (Va. 1793).

118
3' Id. at 38.
3z Bickel, supra note 6 at 25-26.
33 Christopher Wolfe, The Rise of Modem Judicial Review 101,104 (Basic Books, 1986).
34 Powers, supra note 4 at 4.
35 Lino A. Graglia, In Defense of Judicial Restraint, in. Supreme Court Activism and Restraint
135,157 (Stephen Halpem & Charles Lamb, eds., D.C. Heath, 1982).
36 Dred Scott v. Sandford, 19 Howard 393 (U.S. 1857).
37 See Graglia supra note 35 at 157-58.
38
Bickel, supra note 6 at 16.
39
Burger, supra note 27 at 9.
40 Terri Peretti, In Defense of a Political Court 11 (Princeton University Press, 1999).
41 Bickel, supra note 6 at 184.
42 See Bickel, supra note 6.
43 Helen Hershkoff, State Courts and the “Passive Virtues”; Rethinking the Judicial Function, in,
114 Harvard Law Rev. 1833, 1834 (2001).
44 Martin Shapiro, Courts: A Comparative and Political Analysis vii (University of Chicago Press,
1981).
45 See, e.g, United States v. Richardson, 418 U.S. 166 (U.S. 1974).
46 See supra notes 2 and 5, and accompanying text.
47 Hershkoff, supra note 43 at 1852-53.
48 See, e.g., United Public Workers v. Mitchell, 330 U.S. 75 (U.S. 1947); DeFunis v. Odegaard,
416 U.S. 438 (U.S. 1974).
49 See Hershkoff, supra note 43 at 1846; see also Aetna Life v. Haworth, 300 U.S. 227 (U.S. 1937)
distinguishing “a difference or dispute of a hypothetical or abstract character....” Id. at 240.
50 Thomas C. Clark, Thoughts on the Court’s Interpretation of Individual Rights, in, 1 HOUSTON
Law Rev. 75, 78 (1961).
51 See Julian Velasco, Congressional Control over Federal Court Jurisdiction; A Defense of a
Traditional View, in, 46 Cath. U. Law Rev. 671 (1997).
52 Campbell, 32 P.3d at 340.
Japan Whaling Assn. v. Am. Cetacean Soc., 478 U.S. 221 (U.S. 1986) at 230 (internal citations
DeRolph v. State, 677 N.E.2d 733 (Ohio, 1997) at 784 (Moyer, C.J., dissenting).
omitted).

119
55 5 U.S. at 170.
56 Baker v. Carr, 369 U.S. 186 (U.S. 1962) at 217.
5 Philip Kurland, The Rise and Fall of ihe “Doctrine” of Separation of Powers, in, 85 MICHIGAN
law rev. 592,593 (1986).
58 James Madison, The Federalist #37, in, supra note 14 at 228.
59 Kurland, supra note 58 at 603.
60 See, e.g., Lane Sunderland, Constitutional Theory and the Role of the Court, in, 21 WAJCE
Forest Law Rev. 855 (1996).
61 James Madison, The Federalist #47, in, supra note 14 at 301.
62 Ex parte Grossman, 267 U.S. 87 (U.S. 1925) at 119-20.
63 369 U.S. 186 (U.S. 1962).
64 Id. at 217.
65 506 U.S. 224 (U.S. 1993).
66 Id. at 228.
67 Erwin Chemerinsky, Federal Jurisdiction 142 (2nd Little, Brown, & Co., 1994).
68 See, e.g., Alexander Bickel, The Supreme Court, I960 Term—Forward: The Passive Virtues, in,
75 Harvard Law Rev. 40 (1961); Gerald Gunther, The Subtle Vices of the Passive Virtues—A Comment
on the Principle and Expediency in Judicial Review, in, 64 COLUMBIA Law Rev. 1 (1964); Louis Henken,
Is There a “Political Question" Doctrine, in, 85 YALE Law JOURNAL 597 (1976); Martin H. Redish,
Judicial Review and the “Political Question, " in, 79 Northwestern U. Law Rev .1031 (1985); Linda
Sandstrom Simard, Standing Alone: Do We Still Need the Political Question Doctrine, ” in, 100 DICKINSON
Law Rev. 303 (1996).
69 Id. at 143-45.
70 Id. at 145.
71 Martin Redish, Judicial Review and the “Political Question, ” in, 79 NORTHWESTERN Law Rev.
1031,1033 (1985).
72 Bickel, supra note 6 at 184.
13 Powers, supra note 4 at 7.
74 James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It 290
(Basic Books, 1989).
75 See, e.g, Matthew Bosworth, Courts as Catalysts: State Supreme Courts and Public School
Finance Equity (SUNY Press, 2001).
76 William B. Lockhart, ed., Constitutional Law: Cases-Comments-Questions 1 (West, 1986)
(citing Bishop Hoady’s 1717 sermon preached before the King of England).

120
7' Graglia, supra note 35 at 135.
78
Edward H. Levi, An Introduction to Legal Reasoning 6 (University of Chicago Press, 1949).
79 Robert Bork, Coercing Virtue: The Worldwide Rule of Judges 2 (AEI Press, 2003).
80 See, e.g, Henry Glick, Supreme Courts in State Politics (Basic Books, 1971).
81 Louis Fischer, When Courts Play School Board: Judicial Activism in Education, in, 51
Education Law Reporter 693,694 (1989).
82 Bosworth, supra note 75 at 3-4.
83 Charles Lamb, Judicial Restraint on the Supreme Court, in, Supreme Court Activism and
Restraint 8 (Stephen Halpern & Charles Lamb, eds., Lexington Books, 1982).
84 Fischer, supra note 81 at 700; It bears noting that the vast majority of the literature addressing
judicial restraint and activism is framed with the Federal Court System, [hereinafter Article III Courts] (see,
supra note 5).
85 See Wolfe, supra note 33.
86 Gary Jacobson, The Supreme Court and the Decline of Constitutional Aspirations 25 (Rowman
and Littlefield, 1986).
87
Powers, supra note 4 at 1
88 Id. at 2.
89Id. at 13.
90 374 U.S. 483 (U.S. 1954).
91 Graglia, supra note 35 at 179.
92 Alexander Bickel, The Supreme Court and the Idea of Progress 7-8 (Harper and Row, 1970);
see also, Malcolm Feely & Edward Rubin, Judicial Policymaking and the Modem State (Cambridge,
1998).
93 See, e.g., Powers supra note 4 at 8.
94 Id. at 28.
95 Lon Fuller, The Forms and Limits of Adjudication, in, 92 HARVARD Law Rev. 353 (1976).
96 See Bosworth, supra note 75 at 10.
97 Graglia, supra note 35 at 156.
98 Peter Irons, Making Law: The Case for Judicial Activism, in, 24 VAL. U. Law Rev. 33, 52
(1980).
99 Gerald Gunther, Learned Hand: The Man and the Judge (Knopf, 1994).
100
Bosworth, supra note 75 at 2.

121
101 See Bradley C. Canon, A Framework for the Analysis of Judicial Activism, in, Supreme Court
Activism and Restraint 385 (Stephen Halpem & Charles Lamb, eds., Lexington Books, 1982).
102 Donald Horowitz, The Courts and Social Policy 16 (Brookings Inst., 1977).
103 Thomas Sowell, Judicial Activism Reconsidered, in, Essays on Public Policy No. 13 1 (Hoover
Inst., 1993) (emphasis in original).
,04 Rehnquist, supra note 21 at 128.
105 Id. at 133.
106 A braham Lincoln, First Inaugural Address, in, The Complete Works of Abraham Lincoln 171-
172 (J. Nicolay, ed., Lamb Pub. Co., 1894).
107 Sowell, supra note 103 at 15 (emphasis in original).
108
Max Boot, Out of Order: Arrogance. Corruption and Incompetence on the Bench 93 (Basic
Books, 1998) (emphasis in original).
109 Cass Sunstein, The Partial Constitution (Harvard University Press, 1993).
110 Bork, supra note 79 at 6.
111 Id. at 11.
112 Id. at 1.
113 Robert Nisbet Prejudices: A Philosophical Dictionary 210 (Harvard University Press, 1982).
114 Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 10 (University
of Chicago Press, 1991); Rosenberg also proffered a “dynamic court” view which maintained “that courts
can be effective producers of significant social reform... [and] in some cases, they can be more effective
than other governmental institutions....” Id. at 22.
115 United States v. Butler, 297 U.S. 87 (U.S. 1936) at 79 (Stone, J., dissenting).
116 Robert Jackson. The Struggle for Judicial Supremacy 311 (Knopf, 1941).
1,1 Id. at 287.
118 Bickel, supra note 6 at 40.
U9/d.
120 James Bradley Thayer, John Marshall 106-7 (Houghton-Mifflin, 1901).
121 William Colwell, Judicial Review: Issues of State Court Involvement in School Finance
Litigation, in, 24 JOURNAL OF EDUCATION FINANCE 69, 85 (1998).
122
Powers, supra note 4 at 9.
I2j Hudson County Water Co. v. McCarter, 209 U.S. 349 (U.S. 1908) at 355.

122
124 Clifton McCleasky, Judicial Review in a Democracy: A Dissenting Opinion, in, 3 HOUSTON
Law Rev. 359, 360(1966).
] n5
Graglia, supra note 35 at 161.
126 Id. at 156.
127 J. Clifford Wallace, The Jurisprudence of Judicial Review, in, 50 G. W. Law Rev. 1 (1981)
reprinted in, Judges on Judging 146,148 (David O’Brien, ed., 2r,d CQ Press, 2004).
128 Id. at 149.
129 Id.
130 Id. at 148.
131 Bosworth, supra note 75 at 17.
132 Shep Melnick, Between the Lines: Interpreting Welfare Rights 27 (Brookings Inst., 1994).
133 Id. at 40.
134 William F. Butler, cited in Michael McCann, Taking Reform Seriously: Perspective on Public
Interest Liberalism 208 (Cornell University Press, 1986).
135 Graglia, supra note 35 at 153.
136 William Colwell, supra note 121 at71,
137 Arthur Miller, In Defense of Judicial Activism, in, Supreme Court Activism and Restraint 167,
172 (Stephen Halpem & Charles Lamb, eds., D.C. Health, 1982).
138 Id. at 177.
139 Id. at 184.
140 Id. at 180.
141 Id. at 169.
142 Mark Tushnet, Is Judicial Review Good for the Left?, in, DISSENT 65, 70 (Winter, 1998).
I4j Robert McCloskev. The Modern Supreme Court 338 (Harvard University Press, 1972).
144 Robert G. Downing, Judicial Ethics and the Political Role of the Courts, in, 35 LAW & CONT.
Problems 106,107(1970).
145 Id. at 107.
146 Powers, supra note 4 at 9.
47 John Cohen, Judicial Control of the Purse—School Finance Litigation in the Courts, in, 28
Wayne Law Rev. 1393 (1982).
148
McCleasky, supra note 124 at 365.

123
149 304 U.S. 144 (U.S. 1938).
!iotó. at 152 n. 4.
151 Jesse Choper, Judicial Review and the National Political Process 128 (University of Chicago
Press, 1980).
152 James G. Ward, Why is School Finance Equity Such an Elusive Goal?, in, 10 RETHINKING
Schools 6 (1996).
153 Rhodes v. Chapman, 452 U.S. 337 (U.S. 1981) at 359 (Brennan, J., concurring).
154 Peretti, supra note 40 at 11 (emphasis in original).
155 Id. at 12.
156 William Wayne Justice, A Relativistic Constitution, in, 52 U. Of CHIC. Law Rf.v. 441 (1980)
reprinted in, Judges on Judging 135, 141 (David O’Brien, ed., 2nd CQ Press, 2004).
157 Walter Lippman, cited in The Essential Lippman 13 (C.Rossiter & J. Lare, eds., Random
House, 1963).
158
Loren Beth, The Case for Judicial Protection of Civil Liberties, 17 JOURNAL OF POLITICS 100,
110 (1955).
159 Wallace, supra note 127 at 147.
160 Ruth Gavison, The Role of Courts in Rifted Democracies, in, 33 Israel Law Rev. 216,228
(1999) (emphasis in original).
161 See Hershkoff, supra note 43 at 1922.
162 Felix Frankfurter, The Zeitgeist and the Judiciary, in, Law & POLITICS 6 (A. MacLeish & E.
Pritchard, eds., 6th Harcourt, Brace, 1939).
163 Perretti, supra note 40 at 1.
164 See Id.,
165 See Id. at 16.
166 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 1 (Harvard University
Press, 1980); See, c.f, Raoul Berger, The Transformation of the Fourteenth Amendment (Harvard
University Press).
167 J. Clifford Wallace, The Jurisprudence of Judicial Restraint, in, 50 G. W. Law Rev. 71, 83
(1981).
lo8 Sir William Blackstone, Commentaries on the Laws of England Vol. 4 59 (University of
Chicago Press, 1979).
169 Id.
]70Id.

Id. at 60-61.
124
171
l7‘ Sowell, supra note 103 at 2.
174 Robert Bork, The Tempting of America: The Political Seduction of the Law 144 (Free Press,
1990).
175 Id. at 176 (emphasis in original).
176 Bork, supra note 79 at 9.
177 Bork, supra note 174 at 169.
178 Id at 144.
179
Graglia, supra note 35 at 138.
180 Oliver Wendell Holmes, Collected Legal Papers 17 (Hein, 1984).
181 Id at 204.
182 1 98 U.S. 45 (U.S. 1905); A New York law that limited the maximum number of hours per day
that could be worked by bakery employees was struck down by the Court as it deprived the employer of a
liberty interest without due process of law.
I8j 198 U.S. at 75-76 (Holmes, J., dissenting).
184 West Virginia v. Barnette, 319 U.S. 624 (U.S. 1943) at 647 (Frankfurter, J., concurring).
185 3 81 U.S. 479 (U.S. 1965).
186 3 81 U.S. at 510 (Black, J., dissenting).
187 David O’Brien, The Judiciary and the Constitution, in, Judges on Judging 119,120 (David
O’Brien, ed., 2nd CQ Press, 2003)
188 See Peretti, supra note 40 at 17.
189 Joseph Story, Commentaries on the Constitution of the United States (Carolina Academic
Press, 1987).
190 Id. at 135.
191 297 U.S. 1 (U.S. 1936).
192 Id.
193 Despite the measured tone of the opinion, the Court ruled that the 1933 Agricultural
Adjustment Act which implemented a processing tax on agricultural commodities violated the Tenth
Amendment because it attempted to regulate and control agricultural production, an arena reserved for the
states.
¡94
See Peretti, supra note 40 at 18-19.

125
195 Rehnquist, supra note 21 at 127.
-% Wallace, supra note 127 at 149.
197 7c/. at 151.
198 Id at 152.
199 Id. at 155-56.
200 Id. at 156.
201 Id. at 157.
202 Colin Diver, The Judge as Political Powerbroker; Superintending Structural Change in Public
Institutions, in, 65 VIRGINIA Law Rev. 43 (1979).
203 Horowitz, supra note 102 at 284-85.
204 Id
205
Id. at 62; See also, Bosworth, supra note 75.
206 Richard A. Posner, Against a Constitutional Theory, in, Judges on Judging 216, 223 (David
O’Brien, ed„ 2nd CQ Press, 2004).
207 Id at 218.
208
Peretti, supra note 40 at 15 (emphasis in original).
209 Id. at 12.
210 See, Peretti, supra note 40 at 20-21.
211 Laurence H.Tribe, American Constitutional Law (2nd Foundation Press, 1988),
212 Harry Wellington, Common Law Rules and Constitutional Double Standards, in, 83 Yale Law
Journal 221 (1973).
213
Rogers Smith, Liberalism and American Constitutional Law 227 (Harvard University Press,
1985).
2,4 Id.
215
Kenneth Karl, Belonging to America 3 (Duckworth, 1977).
216 Sowell, supra note 104 at 6.
217 David M. Shea, The Limits of the Judiciary; Some Thoughts on Original Intent Theory, in, 24
CONN. Law Rev. 147, 150 (1991-1992).
o i g
Robert Dworkin, Taking Rights Seriously 134 (Harvard University Press, 1977).
219
Id. at 328.

126
220 Id. at 329.
221 Id.
222 Sowell, supra note 103 at 7.
i23 Furman v. Georgia, 408 U.S. 238 (U.S. 1972); Marshall, commenting on the perception that the
American citizenry favored the death penalty, wrote “the question with which we must deal is not whether
a substantial portion of American citizens would today, if polled, opine that that capital punishment is
barbarously cruel, but whether they would find it to be so in the light of all the information presently
available.” Id. at 362 (Marshall, J., concurring).
224 Ely, supra note 166 at 13.
225
Shelly M. Hufstedler, In the Name of Justice, 14 STANFORD Lawyer 2,4 (1979).
226 Id.
227
Rehnquist, supra note 21 at 125; Maintaining fidelity with his interpretivist philosophy, the
Chief Justice further noted that this was not a license for the judiciary to “address themselves to a social
problem simply because other branches of government have failed or refused to do so....” Id. at 125.
228 2 5 2 U.S. 416 (U.S. 1920).
229 2 52 U.S. at 433.
230 McCulloch v. Maryland, 17 U.S. 316 (U.S. 1819) at 415.
William H. Taft, Popular Government 222 (Yale University Press, 1913).
232 Helvering v. Davis, 301 U.S. 619 (U.S. 1937) at 641.
2j3 See, e.g., John Johnson, American Legal Culture: 1908-1940 (Greenwood Press, 1981); Gerald
Fenter, Ordered Liberty; Legal Reform in the Twentieth Century.
'34 Peretti, supra note 40 at 23.
2j5 Miller, supra note 137 at 173.
236 Id. at 177.
237 Id.
238 Id. at 190.
239 Id. at 188.
240 Bickel, supra note 6 at 26.
241 Bork, supra note 79 at 12.
242 Clifton McCleskey, Judicial Review in a Democracy: A Dissenting Opinion, in, 3 HOUSTON
LAW Rev. 354, 360 (1965-1966).
243 Gaglia, supra note 35 at 143.

127
244 Id. at 144.
°45
Benjamin Cardozo, The Nature of the Judicial Process 93-94 (Yale University Press, 1921).
246 Peretti, supra note 40 at 24.
247 Phillip Johnson, Do You Sincerely Want to Be a Radical?, in, 36 STANFORD LAW Rev. 247,
252 (1984).
248 A detailed consideration of the Critical Studies Movement is beyond the scope of this study.
For a sampling of the literature of this novel and controversial school, see, Mark Tushnet, Red. White, and
Blue: A Critical Analysis of Constitutional Law (Harvard University Press, 1988); Allan C. Hutchinson,
ed., Critical Legal Studies (Rowman & Littlefield, 1989); Critical Legal Studies Symposium, in, 36
Stanford Law Rev. 1 (1984); Duncan Kennedy & Karl Klane, A Bibliography of Critical Legal Studies,
in, 94 Yale Law JOURNAL 461 (1984); David Kairys, The Politics of Law: A Progressive Critique (3rd
Basic Books, 1998).
249 See, Jerome Franke, Law and the Modem Mind (Coward McCann, 1930); Karl Llewellyn,
Some Realism about Realism—Responding to Dean Palm, in, 44 Harvard Law Rev. 1222 (1931); Karl
Llewellyn, A Reliable Jurisprudence—The Next Step, in, 50 Columbia Law Rev. 431 (1931).
250 Arthur Schlesinger, The Supreme Court, 1947, in, 35 FORTUNE 73 (1947).
25iId.
252 Mark Tushnet, Legal Realism, Structural Review, and Prophecy, in, 8 U. OF DAYTON Law
Rev. 809, 828 (1983).
253 Id.
254 Peretti, supra note 40 at 38.
255 Id.
256 Paul Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative
Constitutional Scholarship, in, 90 Yale Law Journal 1063 (1981).
257
Bickel, supra note 6 at 80.
2,8 See, Bork, supra note 174 at 71.
Canon, supra note 101 at 385
260 Id., at 391-92.
261 Id., at 393.
262 Id. at 395.
263 Id. at 397.
264 Id. at 399.
265 Id. at 400.

128
266 Id at 401.
267 Id. at 402.
268 Id.
269 Id.
270 Marvin Schick, Judicial Activism on the Supreme Court, in, Supreme Court Activism and
Restraint 37,42 (Stephen Halpern & Charles Lamb, eds., Lexington Books, 1982).
271 Id.
272 Id at 45.
273 Id at 46.
274 Id. at 47.
275 Id
276 Id.
277 Id. at 47-48.
278 Id at 48.
279
Glendon Schubert, A Functional Interpretation, in, The Supreme Court in American Politics:
Judicial Activism vs. Judicial Restraint 12, 17 (David Forte, ed., D.C., Lexington Books, 1965).
280 Hershkoff, supra note 43 at 1993.
281 Donald Winterscheimer, The Relationship Between Federal and Constitutional Law, in, 25 N.
Ky. Law Rev. 257(1998).
282 Hans Linde, State Constitutions are Not Common Law; Comments on Gardner's Failured
Discourse, in, 24 Rutgers Law Rev. 927, 933 (1993).
See, G. Alan Tar, Understanding State Constitutions 161-170 (Yale University Press, 1998).
284 Robert L. Maddex, State Constitutions of the United States xii (CQ Press, 1998).
285 William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, in, 90
Harvard Law Rev. 489, 491 (1977).
286 See, eg., Michael Solimine & James Walker, Respecting State Courts: The Inevitably of
Judicial Federalism 4 (Greewood, 1999); Shirley Abrahamson, Divided We Stand; State Constitutions in a
More Perfect Union, in, 18 Hastings CONST. Law Q. 723 (1991); Shirley Abrahamson, The Emergence of
State Constitutional Lcrw, in, 63 Texas Law Rev. 1141 (1985); Robert L. Berdon, Individual Rights and
the Challenge of the 1990s, in, 22 CONN. Law Rev. 499 (1990); Christine M. Durham, The Judicial
Branch in State Government; Parables of Law, Politics, and Power, in, 76 N.Y.U. Law Rev. 1601 (2001);
Randy Holland, State Constitutions: Purposes and Functions, in, 69 Temple Law Rev. 989 (1996).
"S7 Robert F. Williams, Introduction: The Third State of the New Judicial Federalism, in, 59
N.Y.U. Ann. Surv. of Amer. Law 211,228 (2003-2004).

129
288 Michael Blanchard, The New Judicial Federalism: Deference Masquerading as Discourse and
the Tyranny of the Locality of State Judicial Review of Education Finance, in, 60 U. PITT LAW Rev. 231,
232(1998).
289
Louis D. Brandéis, cited in Maddex, supra note 284 at xi.
Hershkoff, supra note 43 at 1834.
291 See, supra notes 2 and 5 for explanation of “Article III” courts.
292 Forthingham v. Mellon, 262 U.S. 447 (U.S. 1923) at 488.
293
See, G. Alan Tarr, State Supreme Courts in State and Nation (Yale University Press, 1988).
294 3 92 U.S. 83 (U.S. 1968).
295 Tarr, supra note 293 at 42.
Willimington v Lord, 348 A.2d 635 (Del. 1977) at 637.
297 State ex. rel. Ohio Acad, of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio, 1999) at 1081-
82.
298 La. Const, art. V, § 16.
299 Hershkoff, supra note 43 at 1853.
300 Richard Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation, in, 59 N.Y.U. Law
Rev. 1,4 (1984).
>PI Hershkoff, supra note 43 at 1860.
302 In re Lawrence, 579N.E.2d32 (Ind. 1991) at 37.
303 Hershkoff, supra note 43 at 1852.
J°4 See, Colo. Const, art. VI, §3; Fla. Const, art. V, § 3(b); Me. Const, art. VI, § 3; Mass. Const,
art. Ill; Mich. Const, art. Ill; NH Const, art. LXXIV; RI Const, art. X, § 3; S.D. Const, art. V, § 5.
305 Ala. Code §12-2-10 (1975).
306 Del. Code Ann. tit. 10,141 (1999).
307 Waddell v. Berry, 31 N.C.361 (1849); See, also, Charles Carberry, Comment; The State
Advisory Opinion in Perspective, in, 44 Fordham Lav/ Rev. 81 (1975).
308 See, Carberry, supra note 307.
309 Id. at 94-98.
Jl° Hershkoff, supra note 43 at 1857.
311 Thomas Morris, cited in Hershkoff, supra note 43.

130
312
Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, in, Developments in State
Constitutional Law 289 (Bradley D. McGraw, ed., West, 1985).
313 Shirley Abrahamson & Robert Hughes, Shall We Dance? Steps for Legislators and Judges in
Statutory Interpretation, in, 75 Minn. Law Rev. 1045, 1046-1047 (1991).
314 Id.
315 Judith S. Kaye, State Courts as the Dawn of the New Century: Common Law Courts Reading
Statutes and Constitutions, in, 70 N.Y.U. Law Rev. 1,10 (1995).
316 M at 10-11.
Jl7 Hershkoff, supra 43 at 1889.
318 Id. at 1890; see, c.f, Michael Herz, Choosing Between Normative and Descriptive Versions of
Judicial Roles, in, 75 MARQUETTE Law Rev. 725 (1992).
319 Morton J. Horwitz, The Transformation of American Law, 1780-1860 1-2 (Harvard University
Press, 1977).
320 Guido Calabresi, A Common Law for the Age of Statutes 1-2 (Harvard University Press,
1982).
j21 Tarr, supra note 293 at 53.
322 Hans Linde, Judges, Critics, and the Realist Tradition, in, 82 Yale Law JOURNAL 227, 248
(1972).
323 9 3 0 F.2d 549 (7th Cir. 1991).
324 930 F.2d at 552.
325 Brennan, supra note 285 at 501-502.
j26 Hershkoff, supra note 43 at 1864-65.
327 G. Alan Tarr, State Constitutional Politics: An Historical Perspective, in, Constitutional
Politics in the State 3 (G. Alan Tarr, ed.,Yale Univesity Press, 1996).
328 Hershkoff, supra note 43 at 1891.
329 Id. at 1892.
330 Arthur Holcombe, State Government in the United States 480 (MacMillan, 1935).
jj1 Robert F. Williams, State Constitutional Limits on Legislative Procedure, in, 17 PUBLIUS; J. OF
Federalism 91,92 (1987).
j32 Alan Rosenthal, The Decline of Representative Democracy 60 (CQ Press, 1998).
j33 Hershokoff, supra note 43 at 1895.
334 Id.

131
335 Henry S. Kariel The Decline of American Pluralism 105 (Stanford University Press, 1961).
Hershkoff. supra note 43 at 1905.
337Shirley Abrahamson, Remarks before the American Bar Association Commission on
Separation of Powers and Judicial Independence, in, 12 St. JOHN’S J. OF LEGAL COMMENTARY 69, 71
(1996).
338 Christine Durham, The Judicial Branch in State Government: Parables of Law, Politics, and
Power, in, 76N.Y.U. Law Rev. 1601, 1609 (2001).
339 Id., see also, Ellen Peters, Getting Away from the Federal Paradigm: Separation of Powers in
State Courts, in, 81 Minn. Law Rev. 1543 (1997).
340 Peters supra note 339 at 1562-63 (emphasis added).
341 See, e.g., Del. Const, art. IV, § 13 which states, in part that the state high court has authority “to
adopt rules for the administration of justice and the conduct of the business of any or all the courts in this
State.”; N.J. Const, art. VI, § 2, provides that the, “Supreme court shall make rules governing the
administration of all courts in the State and subject to the law, the practice and procedures of all such
courts.”; Hershkoff, supra note 43 has also noted that in states where inherent powers are not “positively
prescribed, courts... treat this authority as an inherent aspect of their institutional role....” Id. at 1874.
342 See, Donna J. Pugh, et. al., Judicial Rulemaking (American Judicature Society, 1984), Carl
Barr, Judicial Activism in State Courts: The Inherent Powers Doctrine, in, State Supreme Courts:
Policymakers in the Federal System (G. Alan Tarr & Mary Porter, eds., Greenwood Press, 1982).
343 Stanley H. Friedelbaum, State Courts and the Separation of Powers, in, 61 Alb. Law Rev.
1417, 1430(1998).
344 Hershkoff, supra note 43 at 1889; see also, Jeffrey Jackson, Judicial Independence, Adequate
Court Funding, and Inherent Judicial Powers, in, 52 MD. Law Rev. 217 (1993) for general discussion of
court’s inherent powers.
345 Tarr, supra note 293 at 48.
346 Id.
347 Robert Groot, The Effects of an Intermediate Appellate Court on the Supreme Court Work
Product; The North Carolina Experience, in, 7 WAKE FOREST Law Rev. 548 (1971).
348 Paul Carrington, et. al., Justice on Appeal 150 (West, 1976).
349 G. Alan Tarr, State Judicial Selection and Judicial Independence, in, Justice in Jeopardy:
Report of the ABA Commission on the 21st Century Judiciary Appendix D, 6 (ABA, 2001).
”° Robert Kagan, The Business of State High Courts, 1870-1970, in, 30 Stanford Law Rev. 121,
155 (1971).
j5] G. Alan Tarr, supra note 3 at 59-60.
352 Id at 60-61.
35j Roy A. Schotland, Comment, in, 61 Law& CONTEMPORARY Prob. 149, 154 (1998).

132
Paul Carrington. Big Money in Texas Judicial Elections: The Siciness and its Remedies, in, 24
5 M U. law REV. 263.266 (2000).
555 John Paul Stevens, Opening Assembly Address, American Bar Association Annual Meeting, in,
12 St. John's 1. of Legal Commentary 21.22 (1996).
3MSee, e.g, Emily Field Van Tassel, Challenges to Constitutional Decisions of State Counsand
ei^renmrv Judiciary Appendix E (ABA. 2001): Tair, supra note 350; Recent Development, in. Justice in
t^nardv 13 (ABA 20011.
137 See, Anthony Champagne. Interest Groups and Judicial Elections, in, 54 LOYOLA U. Law*
REV. 1391 (2001).
333 Paul Carrington. Judicial Independence and Democratic Accountability in fllghcstSlate
Courts, in, 61 Law & CONTEMPORARY PROS, 79.112 (1998).
!!i Laity Aspin & William Hall. Retention Elections and Judicial Behavior, in, 77 JUDICATURE
312(1994).
M Florida Justice Ben Overton, cited in Stephen Bright. Political Attacks an the Judiciary, in, SO
JUDICATURE 165.166 (1997).
SiI Tan. supra note 349 at 7.
Chaires H. Sheldon & Luida Maulé, Choosing Juris»: The Recruitment of State and Federal
Judges 76 (Washington State University Press. 1997).
345 536 U.S. 765 (U.S. 2002).
instances of abuse and ‘voter backlash.' see. generally. Justice in Jconnrdv- Renort of the ABA
Commission on 21" Centurv Judiciary (ABA. 2003): David Reliman. Trends and Issues in State Courts:
Challenges and Achievements, in. Book of the States. Vol 36 2004 235 (Council of State Governments.
2004).
363 The justices of the Rhode Island Supreme Court are appointed for life, while In Massachusetts
and New Hampshire the terms of the justices run to the age of 70. In New York, the term for justices of the
Court of Appeals is 14 years, while terms in the remaining states ranging from 6 to 12 years. Outside of
Massachusetts. New Hampshire. Rhode Island. New- York. New Mexico. Connecticut, and Delaware all
States require their high court justices to face either a retention election or reelección. See. Book of the
146 Note, Unfilled Promises: School Finance Remedies and Slate Courts, in, 104 Harvard Law
REV. 1072(1990-1991).
' Hershokoff. supra note43 at 1902.

133
371 See, e.g, Richard Briffault, Our Localism, Part ¡-The Structure of Local Government Law, in,
90 COLUMBIA Law Rev. 1 (1990); Jerry Frug, Decentralizing Decentralization, in, 60 U. OF CHIC. Law
Rev. 253 (1993); Hershkoff, supra note 45 at 1990-1995.
372 Burt Neuborne, The Myth of Parity, in, 90 Harva.rd Law Rev. 1055 (1977).
37’ Burt Neuborne, Toward Procedural Parity in Constitutional Litigation, in, 22 WM. & Mary
Law Rev. 725, 732 (1981).
374 Daniel Elazar, The American Constitutional Tradition 113 (University of Nebraska Press,
1988).
375 Helen Hershkoff, Positive Rights and State Constitutions, The Limits of Federal Rationality
Review, in, 112 FIarvard Law Rev. 1131, 1156(1999).
376 Hershkoff, supra note 43 at 1902.
377 See, e.g., Paul Kahn, State Constitutionalism and Problems of Fairness, in, 30 Val. U. Law
REV. 459 (1996); Hershkoff, supra note 43.
378 Donald Wilkes, First Things First, Amendomania and State Bills of Rights, in, 54 MISS. Law
Rev. 223 (1984).
379 See, G. Alan Tarr, State Constitutional Politics 3 (Harvard University Press, 1996) noting that
“as of January 1995 the American states had held over 230 constitutional conventions and adopted 146
constitutions...[and] adopted over 6,000 amendments to their current constitutions.”
j8° Maddex, supra note 284 at xxxii-xxxiv; Of the state constitutions 100 years or older, the
Tennessee Constitution has been amended the fewest times, having been ‘altered’ on 32 occasions. Id.
381 Hershkoff, supra note 375 at 1163.
382
James Gardner, The Failed Discourse of State Constitutionalism, in, 90 MICH. Law Rev. 761,
816(1992).
383 Id.
384 Paul Kahn, Interpretation and Authority in State Constitutionalism, in, 106 Harvard Law
Rev. 1147(1993).
385 John Kincaid, State Constitutionalism in the Federal System, in, 496 ANNALS. OF Amer. Pol.
& SOC. SCI. 12, 17 (1988); Professor Kincaid also noted that “the modernization of state governments, the
diversification of most state economies within the states, the increased diffusion of ideas among the states
themselves and the emergence of new problems and issues that require state action all point to the
possibility of a new vitality and sophistication for state constitutionalism.” Id. at 22.
386 Randall Shepard, The Maturing Nature of State Constitution Jurisprudence, in, 30 Val. U.
Law Rev. 421, 440 (1995-1996).
387 Peter Teachout, Against the Stream, An Introduction to the Vermont Law Review Symposium on
the Revolution in State Constitutional Law, in, 13 Vt. Law Rev. 1, 34-35 (1988).
388 Shepard, supra note 386 at 421.
389
Id. at 441.

CHAPTER4
EQUITY IN EDUCATION FINANCE
“All social values—liberty and opportunity, income and wealth, and the bases of self respect¬
are to be distributed equally unless in unequal disadvantage of any, or all, of these values is to
everyone’s advantage.”'
“If I have a cake and there are ten persons among whom I wish to divide it, then if I give exactly
one-tenth to each, this will not, at any rate, automatically call for justification; whereas if I depart
from this principle of equal division, I am expected to produce a special reason.”11
“You must be very careful when you wish for things because you may just get what you wish for.
We worked hard for equity in California. We got it. Now we don’t like it.”111
Harold Lasswell proffered the classical definition of political science, writing that it is the
study of “who gets what, when, and how.”lv Education as a public commodity has been
continually filtered through this prism. Stone has observed that “[distributions—whether of
goods and services, wealth and income, health and illness, or opportunity and disadvantage—are
at the heart of public policy controversies.”v The distribution of finite resources in public
education is unique in this realm however, for its resolution is contingent upon the clarification of
values that are simultaneously highly individualistic and intrinsically social.
A major difference between equity and adequacy is that equity speaks to relative
comparisons while adequacy entertains sufficient and absolute levels. Each concept can be
addressed in consideration of an education finance system; a formula and set of rules employed in
the utilization of publicly collected funds for public education. Given that education in the United
States is the responsibility of the states, education finance systems are established in state and
state departments of education regulations/1 With the reliance on individual states, there are
actually fifty separate and distinct systems presenting with substantial variance in financing and
governance. Conceptualizations of equity contribute to this diversity. Wood and Thompson have
noted that:
134

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Equity is a philosophical construct that largely drives distribution formulas used
to maintain fiscal and educational fairness. These formulas have evolved through
long political processes and attempt to balance the distribution of scarce financial
resources within every state. As social, economic and political events continue to
change, education finance policies must be altered in order to ensure equity.7
Further, as these changes ensue and states are called upon to defend education financing sy stems,
they maintain that “[t]he concept of equal educational opportunity must be examined in light of
several statistical and research models...arguments can only be proved or disproved via sound
and rather sophisticated statistical evidence.”8 The utility of statistical measures is accentuated in
light of the indeterminate nature of equity. Fairness and justice may not entail equality, and
equality is not necessarily equity. Berne and Stiefel suggested that “a well-accepted equity
concept such as equal opportunity includes many specific definitions. Some of these differences,
especially more recent ones, have their origin in whether student performance or resources access
is the ultimate goal of a finance system.”9 There remains a constant tension between the belief
that public schools are to be financed based on principles of equity or whether they are to be
funded with an eye toward providing excellence in order for the nation to compete successfully in
the world marketplace.10 An individual’s take on issues of equality and distribution are often not
determined by the nature of a specific issue, but a general world view. In appraising equity, the
distribution may be judged by the criteria of the process or by the criteria of the recipients and
items.11 Nozick argued that a distribution is equitable if it came about through a voluntary and fair
process. He contrasted his process concept of justice with what he termed the “end-result
concept,” within which equity is a product of an appropriate match of the characteristics of
recipients and characteristics of items.12 Rawls articulated an equitable situation borne of an
innate sense of justice; one that was dependant on a collective rationality that distinguished rules
for a just society without individual bias.13 Whereas Nozick judged the process, Rawls looked to
the end product. Stone described equity as a function of social philosophy, marking that:
Conservatism includes beliefs in distributive justice as fair acquisitions, liberty as
freedom to dispose of one’s property, property as an individual creation, and
work as motivated by financial need. Liberalism includes beliefs in distributive

136
justice as fair shares of basic resources, liberty as freedom from dire necessity,
property as social creation, and productivity as stimulated by security.'4
In the midst of philosophical, social, and political constructs, Wood and Thompson observed that
“equity concerns are often misnamed within the popular culture with what are, in reality, political
agendas or collective misperceptions concerning collective and individual failures of society. The
distinction is often difficult to grasp and articulate given the nature of these agendas.”15
Attempting to navigate through these interpretations, Robert Berne and Leanna Stiefel
designed an original framework for the assessment of state public education financing schemes.
Their work, The Measurement of Equity in School Finance; Conceptual, Methodological and
Empirical Dimensions 16is the most comprehensive design of equity measures and has been
utilized by education and legal scholars in the consideration of state funding formulas.17 In
identifying alternative ways to conceptualize and empirically measure equity in education finance
they provided a methodology measuring the equity effects of change, be it increases or decreases
of funds. Berne and Stiefel organized this equity framework around the answers to four questions:
• Who is the group for whom school finance should be equalized? Two major
groups are of concern; children who attend public schools and the taxpayers
who bear the costs of public education.
• What service, resource or object should be distributed equitably among
members of the group?
• How is equity to be defined? What are the principles employed to determine
if a distributive system is fair?
• How much equity is in the system? What measures should be used to gauge
the degree of equity?
In addressing these questions, it must first be determined if the analysis is ex ante or ex
post. Consonant with Nozick’s conceptualization of equity, ex ante assessments deal with the
parameters and structure of an education funding program prior to application; for example, ex
ante analysis of a statutory design may consider factors such as how “at-risk” students are to be
provided for or the treatment accorded poor districts referenced to affluent districts. Berne and
Stiefel expressed reservations about this approach, observing “[f]or our purposes...the original
intent of many plans is often obscured by features such as caps, limits, hold harmless provisions,

137
proration and exceptions resulting in a significant gap between intent and actual effect. For this
reason, we believe that all standards that assess equity in school finance...should be expost.”]S
Comporting to Rawl’s frame of equitable reference, ex post concepts analyze the data, numbers,
and results that present in light of behavioral changes of school districts as they respond to the
implementation of education finance design elements. Empirical analysis of states’ education
finance distribution formulas in terms of equity are generally ex post.
Secondly, the unit of analysis must be identified. Traditionally, measures in school
finance such as expenditures and/or revenues have been taken at the local school district level.
However, it may also be the states, schools, or students grouped by socioeconomic status or other
characteristics.
Considering for whom education finance systems should be equitable, two groups have
captured the attention of most educational and legal scholars; schoolchildren and taxpayers.
Berne and Stiefel identified children as the primary target, explaining that:
First, education is viewed as an investment in an individual child’s future. In
order to make the distribution of future life-status equitable, attention must be
paid to the way current services are provided. A second rationale for the
specification of children as the group depends, not on the effect that the quality
of education has on future status, but rather on a concern for the experiences of
children in the present.19
Whereas the child is the “customer” within the education system, the second group, taxpayers,
bears the cost in addition to being a consumer. As a target of equity measures, the taxpayer can be
expanded to the household unit whereby these concerns apply to both the taxes paid and the
educational services received by the household. Taxpayers with children and those without both
pay for the provision of public education, thus the employ of a household unit can further
illuminate the equity of a taxation formula.
What object should be equitably distributed can be divided into three categories; inputs,
outputs, and outcomes. Berne and Stiefel conceptualized these objects in terms of stages in the
production of education.20 Children’s inputs are the resources that are utilized to educate children

138
in the schools. The traditional object of analysis has been a measure of educational dollars, either
expenditures (the dollar value of resources that are purchased for the student) or revenues (dollars
received by the district and eventually the child). Revenues can be identified by source (local,
state, and federal) and type (genera! or categorical). Expenditures can be analyzed on a total basis,
programs targeted, or specific function. Beyond dollars, input parameters can include physical
and instructional resources. They can include numbers of books in the library, square footage of
instructional space, teacher-student ratios, teacher qualifications, support staff per pupil, and class
size.
Outputs are further along the education production continuum. Children’s output
concerns include scores on achievement tests, identified competency levels in different
disciplines, high school graduation rates, and post secondary attendance rates. As outputs are less
controllable than inputs they present with greater measurement challenges. In determining student
achievement, the measure can be incremental or an equal gains reference, or comparisons of gains
per dollars and based on norm- or criterion-referenced tests. Either standard, regardless of test,
need not be equal to be equitable. The determination of how much variance can present while still
maintaining equity remains highly subjective. An equally tentative evaluation is entertained in the
consideration of outcomes in Berne and StiefeTs formulation. They argue that “the perspective
should be longer term than just the immediate results of the schooling system, and that lifetime
outcomes such as income, occupation status, personal satisfaction, ability to compete in the labor
market, or status, in life should be the object of interest.”21 As Burtless has detailed, making the
connection between these outcomes and K-12 school is, at the least, problematic.22
Berne and Stiefel identified two taxpayer objects. The first considered the tax burden,
defined as “the taxes paid by taxpayers, usually stated as a percentage of the taxpayer’s ability to
pay.” The tax burden concept can be expanded as noted to include the consideration of the
household; an analytical tact that makes provision for the second taxpayer object; the taxes paid
and the education received. Neither object is clearly delineated; both are subject to considerations

139
of scope, while the later must also entertain a choice of children's object. Referencing an inherent
subjectivity in the choice of object for scrutiny, Berne and Stiefel observed “the choice of an
object is neither straightforward nor value-free.'^4
Having identified a group and object, a concept of equity and the principles therein must
be distinguished to further an assessment. The first., horizontal equity entails “equal treatment of
equals,” a principle that provides that students who are alike should be treated equally. When
children are treated as such, horizontal equity prescribes in terms of objects “equal expenditures
or revenues per pupil, equal education resources for the basic education program, equal pupil-
teacher ratios, equal mastery of basic competency levels, or equal contributions by schooling to
long-term outcomes such as income or status in life.”25 Obviously, horizontal equity is difficult to
apply in reference to educational outputs and outcomes. Berne and Stiefel conceded that no one
“argues that outputs (such as achievement scores or graduation rates) should be the same
(perfectly horizontally equitable) for all students.”26 The presence or absence of variance or
inequality is the measure of horizontal equity, thus it is most amendable to empirical standards.
The challenge lies in identifying truly homogenous groups for comparison and determining where
along the education production continuum to apply the cited measure. In reference to the
taxpayer, horizontal equity is a clear determination of equal tax burden for taxpayers with equal
ability to pay, an exercise which presents within distinct criterion.
The second principle, vertical equity, is premised upon the appreciation that students are
different and articulates that unequals require appropriately unequal treatment. Under certain
circumstances this inequality in provision is acceptable in order to provide differing levels of
some object to legitimately identified students or districts. Characteristics that can be utilized as a
basis for these distributive formulas can be those of the student, district, or program. These
attributes can be further distinguished as to legitimacy in reference to application to funding
formulas. Legitimate child based characteristics that could countenance the provision of different
levels of resources include learning disabilities, physical or mental disabilities, inadequate

140
preschool preparation and limited English proficiency. Gender, race, and ethnicity are illegitimate
characteristics and preclude application of different object levels. School district characteristics
such as technological costs, economy of scale, energy costs, transportation costs, and safety
requirements are regarded as legitimate. For distributive purposes, fiscal capacity, property
wealth, and household income are considered illegitimate. Often “urbanness” of a school district
can be deemed legitimate characteristics, if treated as a concept encompassing higher proportions
of legitimate characteristics of children or district; i.e. handicapped students or resources required
per unit of security'. A final category is program-based characteristics. State and district decisions
to provide vocational education, magnet schools, laboratory sciences, or specialized, advanced
topics that require greater resources than the regular programs are generally accorded legitimacy.
Programs necessitated by factors beyond the control of the student or school district such as
handicapped programs or size differentials are invariably treated as legitimate for funding
purposes. The measurement of vertical equity can be accomplished with application of the
empirical indices employed in gauging horizontal equity following the quantification of special
needs and the subsequent “weighting” of pupils in the identified group. Alternatively, categorical
or program revenues can be separated from general revenues for comparison, although such a
treatment does not address degree, only the presence of an additional dispersion. Additionally,
statewide average revenues, expenditures, or particular services per pupil in a special population
can be compared to that of the standard student population. Berne and Stiefel expanded upon
their original conceptualization of vertical equity, asserting that it required the identification of
“students who differ in their needs for quality or use of inputs to achieve defined levels of
output.”27 Therefore, the consideration of vertical equity for children not only requires
determining the degree of variance in treatment, but also quantitatively tying the level of inputs to
the desired outputs. Conversely, taxpayer vertical equity is a single calculation of the relationship
between the tax burden and ability to pay in order to ascertain if formulas were regressive,
proportional, or progressive.

141
The third equity principle, equal opportunity can be considered in positive and negative
terms. In the positive vein, it is the conviction that all students should have an equal chance to
succeed, the only limitation being personal characteristics such as desire, ability, commitment,
and motivation. Negatively, the principle states that education success should not be a factor of
circumstances which are beyond the control of the student. These would include many of the
aforementioned characteristics of identified groups such as ethnicity, race, gender, financial status
of the family, geographic location, and disability. Wealth or fiscal neutrality, considered ex ante
or ex post has traditionally been the major determinant of equal opportunity. Ex ante, it focuses
upon the funding formulas such as the introduction of s guaranteed tax base structure to ensure
that school districts that levy the same tax rates would be able to realize the same level of
revenues; i.e. equal yield for equal effort. Ex post, wealth neutrality is determined via an analysis
of the statistical relationship between educational inputs and the wealth of the local school
district.
The final question in the education finance equity paradigm addresses which quantitative
measures should be employed to assess the degree of equity. The bulk of equity measurement has
addressed horizontal equity evidenced within state funding formulas, in addition to those
addressed to vertical equity when using weighted pupil standards (weighted dispersion measures)
as discussed. Beyond this treatment, Wood and Thompson noted that “[vjertical equity is so
complex that agreement concerning measurement or achievement is not assured, and its costs are
often thought to be prohibitive.”28 Therefore, these statistical tools are generally confined to
resource accessibility, tax yields, and fiscal neutrality. The commonly employed statistical indices
are discussed herein.29 Equity measures include:
• Range-The difference between the values of the highest and lowest
observations. The smaller the value of the range, the smaller the variance in
the distribution of the object in question suggesting greater equity.
• Restricted Range-The difference between the object observation at the 95th
percentile and at the 5th percentile. The measure is utilized to minimize the
skewing effect of statistical outliers.

142
• Federal Range Ratio-This measure is calculated through the identification of
the ratio of the restricted range to the value evidenced at the 5* percentile.
Smaller values indicate greater equity.
• Variance-The value of the average of the deviations from the mean squared.
Lesser values present point to greater equity.
• Standard Deviation-The square root of the variance. The smaller the
calculated value, the smaller the dispersal spread, thus greater equity.
• Coefficient of Variation-The standard deviation divided by the mean.
Usually yields a value between zero and one, the closer to zero the greater
the equity.
• Mean-This measure is often the first observation referenced given its
simplicity. The mean represents the average value in the distribution of a
variable and as such has limited utility beyond a point of reference.
• McLoone Index-An indice created specifically for education finance
scrutiny, it is the ratio of the sum of all values below the median to the surn
of all the values of the variable if all had the value of the median. Values
range from zero to one, one indicating perfect equity.
• Gini Coefficient-Indicates the degree to which students at different
percentiles gamer the same amount of an object, based upon graphed data
and the resulting Lorenz Curve. Demonstrates how far the distribution of per
pupil objects is from providing each percentage of pupils with an equal
percentage of an object. Its values range from zero to one, a completely
equitable distribution presenting with a value of zero.
• Correlation Coefficient-A measure of the linear relationship between two
variables. Ranges from -1.0 to 1.0, values approaching zero indicating the
absence of a relationship. Values approaching either extreme point to a
negative or positive relationship respectively. Utilized as a traditional
measure of wealth neutrality.
• Thiel’s Measure-A statistical tool based on information theory. Application
of a measure commonly employed to assess income distribution of per-pupil
objects. Values approaching zero indicate greater equity.30
• Atkinson’s Index-A measure that employs a specific utility function that
converts the distribution of a particular pupil object to a specific value.
Ranges from one, indicating perfect equality, to zero, evidencing perfect
inequality.31
In reference to statistical tools and litigation, Wood and Thompson remarked that “states
must be prepared to present defensible quantitative and qualitative models that reflect that the
distribution formula is rational, is related to legitimate policy objectives, and is designed to meet
equal education opportunity within any rational understand.”32 However, within a trend toward an
appreciation of adequacy do these statistical indices retain a significant utility? Many educational
and legal scholars answer in the affirmative, maintaining that adequacy is anchored in some
conception of spending equity. Minorini and Sugarman contend that just as in the early equity
cases, current legal strategy had continued to address large spending and other input differences.33

143
Enrich believes that even in cases where adequacy based arguments are presented, courts have
tended to recast them as equity arguments, noting that “the durability of appeals to equality in
education finance litigation over the past twenty years provides vivid evidence of equality’s
strong pull on our legal and political sensibilities.”34 He maintains that those representing the
poorer communities have been reluctant to stiucture their arguments on adequacy rather than
equality, fearing that “surrendering the moral high ground of absolute standards and falling back
onto slippery slopes of relative judgments of adequacy,” will relegate students to mediocre
opportunities and ensure significant competitive disadvantages.3’ Observers of education finance
reform suggest that the fear that adequacy standards may be too modest and subject to political
and legal manipulation may serve to check an inclination to abandon considerations of relative
levels. Thro marks the presence of both concepts, at times apparently working at cross-purposes,
writing that “courts appear to be confused about whether they are deciding a quality suit or an
equity suit. This confusion is probably due to the fact that the litigants, although clearly
emphasizing quality education, make both education clause (quality suit) and equal protection
clause (equality suit) arguments.”36 Considering the utility of equity and the concrete quality of
same, Levine suggested that:
The great advantage of school finance systems based on minimum revenue
equality is the guarantee of an adequate education budget. Its biggest problem,
however, is in determining how much money funds an “adequate education.”
Equalizing total revenue, but contrast provides a much more judicially
manageable standard. Determining how much is “enough” is difficult, but
determining whether all districts have the same budgets is simple.3;
In a similar vein, Michelman noted in 1969 ‘“as much as’ seems to provide just the
certainty of measure which 'enough of so sorely lacks.”38 Given that significant disparities in
education funding persist,39 the normative appeal of equality may continue to exhibit judicial
purchase. Berne and Stiefel, commenting fifteen years after their seminal work, found the staying
power of horizontal equity surprising, given that it is not reasonably applied to outputs or
outcomes.40 The authors suggested that “if equity remains an important value, and adequacy

144
continues to grow in importance, then the research that links inputs and outputs will remain at the
center of debates over school finance equity.”4' A continuing referral to equity standards may
indicate that such a correlation has been established. Wood proffered that “[t]he political
pendulum swings, and equity and adequacy will continue to rise and fade in cycles.”42 A review
of the appellate case record may provide an indication of where that “pendulum” now rests and
what judicial factors are at play in that dynamic.
Notes
1 John Rawls, A Theory of Justice. 62 (Harvard University Press, 1971).
2 Frederick Olafson, ed., Equality 131 (Prentice Hall, 1961) (citing Sir Ralph Berlin).
3 William Fischel, School Finance Litigation and Property Tax Revolts: How Undermining Local
Control Turns Voters Away from Public Education, in Developments in School Finance. 1999-2000 79.
102 (William Fowler, ed., National Academy Press, 2000) (citing Charles Benson).
4 Harold Lasswell, Politics: Who Gets What. When, and How 3 (2nd World Publishing, 1958).
J Deborah Stone, Policy Paradox: The Art of Political Decision Making 39 (W.W. Norton, 1997).
6 See, e.g., Robert Berne & Leanna Stiefel, Concepts of School Finance Equity: 1970 to Present,
in Equip' and Adequacy in Education Finance: Issues and Perspectives 1 (Helen Ladd, et. al. eds., National
Academy Press, 1999).
7 R. Craig Wood & David Thompson, Educational Finance Law: Constitutional Challenges to
State Aid Plans—An Analysis of Strategy 18 (2nd NOLPE, 1996); As a general text, this work addresses all
facets of education finance in addition to a discussion of education finance litigation history and
implications for future jurisprudence.
* Id. at 103.
9 Berne, supra note 6 at 8.
10 See, e.g., Wood, supra note 7.
See, e.g., Stone, supra note 5.
13 Richard Nozick, Anarchy. State and Utopia (Basic Books, 1974).
13 Rawls, supra note 1.
14 Stone, supra note 5 at 50.
!5 Wood, supra note 7 at 2.

145
Io Robert Berne & Leanna Stiefel, The Measurement of Equity in School Finance: Conceptúa!.
Methodological and Empirical Dimensions (John Hopkins University Press, 1984); This chapter draws
heavily on the conceptual framework of this work and the implications of applications of various empirical
indices.
17 See, e.g., Wood, supra note 7; Mark Goertz, School Finance in New Jersey: A Decade After
Robinson v. Cahill, in 28 JOURNAL OF EDUCATION FINANCE 4,475 (2002); D. Goldhaber & K. Callahan,
Impact of the Basic Education Program on Educational Spending and Equity in Tennessee, in 26 JOURNAL
OF Education Finance 4, 415 (2001); G. Hickrod, et. al.. Reformation and Counter Reformation in
Illinois School Finance: 1973-1981 (Center for the Study of Education Finance, 1981); R. Rubenstein, et.
ah, 77; e Equity of Public Education Funding in Georgia, 1988-1996, in 26 JOURNAL OF EDUCATION
Finance 2,187(2000).
18 Robert Berne & Leanna Stiefel, Equity Standards for School Finance Programs: Philosophies
and Standards Relevant to Section 5 (d) (2) of the Federal Impact Aid Program, in 18 JOURNAL OF
Education Finance 2, 88,106(1992).
19 Berne, supra note 16 at 8.
20 See Berne, supra note 6.
21 Id. at 12.
22 Gary Burtless, Does Money Matter? (The Brookings Institute, 1996).
23 Berne, supra note 16 at 40.
u Id. at 41.
25 Id. at 13.
26 Berne, supra note 6 at 18.
21 Id. at 20.
28 Wood, supra note 7 at 45.
29 This list is by no means exhaustive, nor are the complexities and limitations of their application
and interpretation entertained. The intent of the author, staying within the confines of this study, is to
simply present a general introduction to the statistical tools that are the concern of education finance
litigation. The statistical merits and intricacies of each are beyond the scope of this text.
30 See Henri Thiel, Economics and Information Theory (Rand McNally, 1967).
jl See A. Atkinson, On the Measurement of Inequality, in, 2 JOURNAL OF ECON. THEORY 244
(1970).
32 Wood, supra note 7 at 105.
33
Paul Minorini & Steve Sugarman, Educational Adequacy and the Courts; The Promise and
Problems of Moving to a New Paradigm, in, Equity and Adequacy in Education Finance: Issues and
Perspectives (Helen Ladd, et. ah eds., National Academy Press, 1999).
34 Paul Enrich, Leaving Equality Behind, in, 48 VANDERBILT Law Rev, 10!, 143 (1995).

146
35 Id. at 181.
6 William Thro, Judicial Analysis During the Third Wave of School Finance Decisions as a
Model, in, 35 B.C. Law Rev. 598, 609 (1994).
37 s
G. Levine, Meeting the Third Wave: Legislative Approaches to Recent School Finance Rulings,
in, 28 Harvard J. of Legislation 507, 524 (1991).
38
Richard Michelman, Forward: On Protecting the Poor Through the Fourteenth A.mendment, in,
83 Harvard Law Rev. 7,18 (1969).
39 See B. Biddle & D. Berliner, Unequal Funding for Schools, in, West Ed Policy Perspectives
(Education Policy Reports Project, 2003); The study detailed stark funding differences, for example in
Alaska at the 95th percentile the funding averaged $16,546 per-pupil while at the 5th percentile funding
stood at, on average, $7,389. In Vermont the respective figures stood at $15,186 and $6,642, while in
Illinois the funding levels varied, at the aforementioned percentiles, from $11,507 to $5,200.
40 Berne, supra note 6.
41 Id. at 31.
42 R. Craig Wood, Constitutional Challenges to State Education Finance Distribution Formulas:
Moving from Equity to Adequacy, in, 23 St. LOUIS Univ. Pub. Law Rev. 531, 563 (2004).

CHAPTER 5
EDUCATION FINANCE LITIGATION
Sawyer v. Gilmore, 83 A. 673 (Maine, 1912)'
Plaintiff argued that the state’s education finance distribution formula violated the Equal
Protection Clause of the Fourteenth Amendment, was derived from an unequal taxing scheme,
and resulted in unequal educational opportunity. In Maine, one third of the “Common School
Fund” was apportioned according to the number of students in the school district, two thirds
apportioned according to the valuation. This formula, according to the plaintiff, benefited the
cities and more affluent towns more than the poorer communities. In holding for the defendant,
the Maine Supreme Court noted that a second source of school funding, the school mill tax,
benefited the poor more so than the rich and had been previously held constitutional. Further, the
court in an opinion that lacked any reference to statistical indices of equity, wrote, “in order that
taxation be equal and uniform in the constitutional sense, it is not necessary that the benefits
arising therefrom should be enjoyed by all the people in equal degree; nor that each one of the
people should participate in each particular benefit.”2 In addition, “[inequality in assessment is
necessarily fatal, inequality of distribution is not, provided the purpose be the public welfare.”3
Finding that the Maine Constitution prescribed no regulation in the matter, it determined that “it
is not for the court to say that one method should be adopted in preference to another.”4 The
issue of education finance was left to the legislature, the court opining that “the method of
distributing the proceeds of such a tax rests in the wise discretion and sound judgment of the
Legislature. If this discretion is unwisely exercised, the remedy is with the people, and not with
the court.”5 In reference to the Fourteenth Amendment, the court ruled, “if persons subjected to
147

148
the law in question are treated alike, under like circumstances and conditions, both in the
privileges conferred and in liabilities imposed, there is no violation of this amendment.”6
Miller v Korns, 140 N.E. 773 (Ohio 1923)
Plaintiffs charged that the state funding formula was unconstitutional; maintaining that
the apportionment of the moneys derived from school funding tax was not uniform, thus in
essence constituting a levy evidencing absence of uniformity.7 In a system that benefited the
poorer regions of the states more so than the affluent, city school districts and exempted village
school districts received the full proceeds of the levy for education, while districts outside of
these locales were funded on the basis of number of teachers, other educational employees, and
transportation costs. Thus, the plaintiffs contended, a county could receive far less than it had
collected. In finding for the defendant the court cited Article 2, § 6 of the Ohio Constitution that
called for a ‘thorough and efficient systems of common schools throughout the state.’ The court
wrote, “[a] thorough system could not mean one in which part or any number of the school
districts in the state were starved for funds...in the attainment of the purpose of establishing an
efficient and thorough system of school throughout the state it was easily conceivable that the
greatest expense might arise in the poorest districts.”8 It asked rhetorically, “could there be a
more reasonable classification than that provided for in this act—that school districts should
receive aid in varying proportions according to their needs...?”9 The Ohio court ruled that the tax
served not a local purpose, but a state objective, concluding, “it is not a gratuity, no private gift to
an individual, nor to a particular district, to support the schools of the state. It is a contribution to
the public, and not to a local purpose; a contribution to the community’s very life, which must be
exacted of every citizen.”10 The finding, one within which no reference was made to particular
statistical formulas, presents as an early example of the application of vertical equity.

149
Talbott v. Kentucky State Board of Education, 52 S.W. 727 (Ky. 1932)
The Court of Appeals of Kentucky11 ruled that an act passed by the General Assembly of
Kentucky in 1930 that provided for the distribution of equalization funds to local schooi districts
was in violation of the Kentucky Constitution. The legislature defined the equalization of
educational opportunities as “the raising of the level of expenditures per pupil for educational
purposes in school districts where the level of educational opportunities is below the level or
standard or fixed and prescribed by law and by the State Board of Education....”12 The act
provided for the creation of a fund which would aid school districts which could not afford to
employ its teachers for a minimum of seven months and pay them a minimum salary of $75 per
month after having used all of its state per capita education funds and revenue generated through
a prescribed local tax. The court ruled that the program violated Section 186 of the state
constitution which mandated that moneys from the Common School Fund be disbursed solely on
a per capita basis. The court in holding that the equalization funds must be considered part of the
Common School Fund effectively precluded disbursal on any other basis than per capita. The
court noted that if the General Assembly wished to address inadequate funding, it had the option
of increasing revenue allotted for the Common School Fund or raising the limit of the rate of
taxation that may be levied for local school purposes. The court was not unsympathetic to the
designs of the act, however. It noted a 1920 state commission evaluation of the funding formula
which concluded that:
A method of distributing state funds that thus ignores differences in financial
resources, ignores differences in the grade and in the quality of the schools
although there is equal willingness on the part of the people to make sacrifices
for them, and ignores the state’s responsibility to provide equal educational
opportunities of a satisfactory standard for all the children of the Commonwealth,
ought not to be longer tolerated. Sound policy requires that these differences be
taken into account in distributing state school funds.13
An Efficiency Committee commissioned by the General Assembly reported in 1924 that,
“of paramount importance, but unfortunately impossible under the present Constitution, is a

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complete revision of the system of allotting the State Common School Fund. The effect of the
present laws is to create a deplorable degree of discrimination between the opportunities afforded
the pupils of the different districts.”14 Having drawn attention to these studies, the court noted that
two recent constitutional amendment proposals referencing education financing had failed to be
ratified. Thus, the constitutional standard in reference to the disbursal of school funds remained in
force, therefore preventing enactment of the equalization scheme.
Mclnnis v. Shapiro, 293 F.Supp. 327 (N.D. Ill. 1968)
High school and elementary school students from four districts in Illinois filed suit
challenging the constitutionality of the state’s public education funding system. Plaintiffs claimed
that the financing statutes violated their Fourteenth Amendment right to equal protection and due
process because they permitted wide variations in expenditures per student, “thereby providing
some students with a good education and depriving others, who have equal or greater educational
needs.”15 In dismissing the case, the district court declared, “[ujnequal educational expenditures
per student based upon the variable property values and tax rates of local school districts do not
amount to an invidious discrimination. Moreover, the statutes which permit these unequal
expenditures on a district to district basis are neither arbitrary nor unreasonable.”16 The court did
acknowledge the plaintiffs demonstration of the significant range of per pupil expenditures,
however noted, “[wjhile the inequalities of the existing arrangement are readily apparent, the
crucial question is whether it is unconstitutional.”17 It opined that “the 14th Amendment does not
require that public school expenditures be made only on the basis of pupils’ educational
needs....”18 In reference to the plaintiffs contention that public school expenditures be made only
on the basis of pupils’ education needs, the court wrote that in the absence of judicially
manageable standards, the controversy was nonjusticiable. The court observed that “the only
possible standard is the rigid assumption that each pupil must receive the same dollar
expenditures. Expenses are not, however, the exclusive yardstick of a child’s educational

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needs.”19 Further, while remarking that the matter was properly the purview of the legislature, the
opinion stated that “even if there were some guidelines available to the judiciary, the courts
simply cannot provide the empirical research and consultation necessary for intelligent
educational planning.”20
Burruss v. Wilkerson, 310 F.Supp. 572 (W.D. Va. 1969)
Parents and students of Bath County in Virginia brought suit against the state’s Secretary
of Education, challenging the constitutional validity of Virginia’s statute for the distribution of
funds for education. Citing that the apportionment of state funds failed to take into account any
variations in education needs and that the dependence on local property values resulted in
substantial disparities, plaintiffs argued the statute violated the Equal Protection Clause of the
Fourteenth Amendment and failed to meet Virginia’s constitutional obligation to “maintain an
efficient system of public free schools.”21 While acknowledging that deficiencies and differences
existed, the court in finding for the state, declared “we do not believe they 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...we can only see to it that the outlays on
one group are not invidiously greater or less than that of another...no such arbitrariness is
manifest here.”22 The court further observed that “plaintiffs seek to obtain allocations of State
funds among the cities and counties so that the pupils in each of them will enjoy the same
educational opportunities...the courts have neither the knowledge, nor the means, nor the power
to tailor the public monies to fit the varying needs of these students throughout the state.”23
Hargrave v. Kirk, 313 F.Supp. 944 (M.D. Fla. 1970)
In the United States District Court for the Middle District of Florida, the plaintiffs in this
class action charged that the enactment of state legislation, commonly referred to as the “Millage
Rollback Act”24 violated the Equal Protection Clause of the Fourteenth Amendment. Under the

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statutes, district and county miilages could not exceed ten mills. If a municipality elected to do so,
it would not be eligible to receive education funding under the state’s Minimum Foundation
Program. Plaintiffs charged that it referenced a standard related soley to property wealth not
educational needs and as such failed to provide Florida children with an economically equal
educational opportunity. The court noted the disparate funding levels selected counties could
raise at ten mills, citing the demonstrated range of revenue generated with the application of the
ten mill levy25 as evidence that “the Act prevents the poor counties from providing from their own
taxes the same support for public education which the wealthy counties are able to provide.”26
The opinion distinguished this case from Mclnnis,27 noting that the plaintiffs in this case were
seeking the ability to raise more money locally rather than requesting the state provide greater
funding. It wrote, “the plaintiffs’ argument simply stated is that the Equal Protection Clause
forbids a state from allocating authority to tax by reference to a formula based on wealth. Unlike
the broad relief sought in Mclnnis the remedy here is simple—an injunction against state officials
from taking action because of a county’s refusal to limit its taxes to ten mills imposed by the
Act.” 28 In response to the plaintiffs charge that education be regarded as a fundamental right and
that the Act be subjected to strict scrutiny, the court observed, “having concluded that there is not
a rational basis for the distinction which the legislature has drawn, we decline the invitation to
explore the fundamental right-to-an-education thesis, and thus we do not reach the more exacting
‘compelling interest’ approach.”29
Askew v. Hargrave, 401 U.S. 476 (U.S. 1971)
The Supreme Court vacated and remanded the decision in Hargrave v. Kirk,30 ruling that
the federal district court in Florida had erred in declining to abstain from considering the case.31
Appellants had argued, and the Court agreed, that the lower court should have deferred to the
parallel state court proceeding. On remanding the case, the Court commented that upon
examination of the pleadings and affidavits it found that they did not sufficiently address the

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argument that the “Millage Rollback Act”32 was only one aspect of a comprehensive legislative
initiative for reorganizing the state’s public education financing scheme. Appellants contended
that the net effect of the legislation would be an increase the moneys available to the districts on a
per pupil basis. The Court ruled that given that the operation of the program in total may be
critical to an equal protection decision, a fully developed factual record should be considered.
Serrano v. Priest, 487 P.2d 1241 (Cal. 1971)
A class action suit was brought on behalf of public school students and their parents
against officials of the state of California. Plaintiffs contended that a state financing system that
relied heavily on local property taxes resulted in significant disparities among school districts as
to expenditures per student. As such it was invidiously discriminatory and in violation of the
Equal Protection Clause of the Fourteenth Amendment. On appeal, the California Supreme Court
reversed the lower court’s ruling for the defendants and remanded to the trial couit. The court
held the financing system was in violation of both the Equal Protection Clause of the Federal
Constitution and the California Constitution for it made “the quality of a child’s education a
function of the wealthy of his parents and neighbors.”33 The court referred to the range of
assessed valuation per student and the range of per pupil expenditures, commenting that
significant disparities existed despite state equalization and supplemental aid. Key to the ruling
was the determination that wealth was a suspect classification, regardless that it is the wealth of a
district not an individual. In rejecting the state’s claim the court opined:
To allot more educational dollars to the children of one district than to those of
another merely because of the fortuitous presence of such property is to make the
quality of a child’s education dependant upon the 'location of private commercial
and industrial establishments, surely, this is to rely on the most irrelevant of
factors as the basis for educational financing.34
Citing education as a fundamental right, in addition to citing the California State
Constitution,35 the court drew an analogy comparing it to the rights of defendants in criminal
cases and the right to vote; rights the Supreme Court had protected against discrimination based

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on wealth. Further, the court cited education as essential to free enterprise and democtacy, had an
unparalleled impact on youth and society and unlike other government services continued to
evidence impact over a lengthy period of time.36 in dismissing the concept of local control and
educational choice as a compelling stale interest, the California court opined, "so long as the
assessed valuation within a district’s boundaries is a major determinant of how much it can spend
for its schools, only a district with a large tax base will be truly able to decide how much it really
cares about education.”37 In contrast to Mclnnis v Shapiro,38 the plaintiffs made an equal
protection claim, relying upon wealth discrimination as opposed to educational needs, thereby,
according the court dismissing any issue of nonjusticiablity given that it presented with
“discoverable and manageable standards.”39 In light of the application of a suspect classification
and fundamental right, the court found that the financing system failed to withstand the requisite
strict scrutiny, thereby denying “to plaintiffs and others similarly situated the equal protection of
the laws.”40
Van Dusartz v. Hatfield, 334 F.Supp. 870 (D. Minn. 1971)
The United States District Court for the District of Minnesota, Third Division, ruled that
the Minnesota system of funding education which made spending per pupil a function of a school
district’s wealth violated the Equal Protection Clause of the Fourteenth Amendment. Drawing
extensively on Serrano,41 the federal court wrote:
The issue posed by the children, here as in Serrano, is whether pupils in publicly
financed elementary and secondary schools enjoy a right under the equal
protection guarantee of the 14th Amendment to have the level of spending for
their education unaffected by variations in the taxable wealth of their school
district of parents. This Court concludes that such a right indeed exists and that
the principle announced in Serrano v. Priest is correct. Plainly put, the rule is that
the level of spending for a child’s education may not be a function of wealth
other than the wealth of the state as a whole.42
Agreeing that education is a fundamental right, the court observed that: “Education has a
unique impact on the mind, personality, and future role of the individual child. It is basic to the

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functioning of a free society and thereby evokes special judicial solicitude.”43 In referencing the
treatment of wealth as a suspect class, the district court marked:
What is important to note is that the objection to classification by wealth is in this
case aggravated by the fact that the variations in wealth are State created. This is
not the simple instance in which a poor man is injured by his lack of funds. Here
the poverty is that of a governmental unit that the State has defined and
commissioned. The heaviest burdens of this system surely fall de facto upon
those poor families residing in poor districts who cannot escape to private
schools, but this effect only magnifies the odiousness of the explicit
discrimination by the law itself against all children living in relatively poor
districts.44
That education was the fundamental right in question influenced the determination of
wealth as a suspect class, the court noting that its finding, “does not suggest that by itself
discrimination by wealth is necessarily decisive. No court has so held. However, when the wealth
classification affects the distribution of public education, the constitutional significance is
cumulative.”45 The ruling made an oblique reference to range was included in the observation that
“[sjchool districts in Minnesota differ in taxable wealth per pupil. Indeed, some districts have
almost no taxable wealth while other range up to and even above 30,000 dollars per pupil.”45 In
finding for the plaintiffs, the district court exercised its retention of jurisdiction, however choose
to defer action until after the conclusion of the Minnesota Legislative session.
Parker v. Mandel, 344 F.Supp. 1068 (D. Md. 1972)
The United States District Court for the District of Maryland denied motion of defendants
to dismiss suit brought by school children and their parents from eight Maryland counties and the
City of Baltimore. Plaintiffs, citing a direct relationship between expenditures for public
education and the quality of education, charged that the state funding system, relying primarily on
local taxes, resulted in disparities that afforded students in poorer districts an inferior education.
Further maintaining that funding inequities were exacerbated by the state aid formula, plaintiffs
claimed that there was neither a rational basis nor a compelling state interest justifying such
discrimination therefore state policy was in violation of the Equal Protection Clause of the

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Fourteenth Amendment. In entertaining a call for relief entailing a declaration voiding
Maryland’s statutory system of financing public education, the court first determined that action
was not barred by the Eleventh Amendment and dismissing state’s contention that the issue was
in essence a political question and as such defied adjudication. Having done so, the court
considered what constitutional test should be applied in dealing with the equal protection claim.
In determining that education was not a fundamental right, the court observed:
That education is important and a vital concern of state and local government
cannot be denied. But this is far from saying that education is so vital as to be
called a ‘fundamental’ interest from a constitutional point of view and thus made
subject to a much more rigorous constitutional test than that applied in other
areas of state concern. Can it reasonably be said that education is a more
fundamental interest than health or welfare?...This Court concludes that when
state statutory programs dealing with education, health, or welfare are to be
examined under the equal protection clause, there is no essential differences in
any of these three vital areas of state concern.47
In conjunction with the holding that an invidious legislative classification made on the
basis of wealth had not been created, the court declined the application of strict scrutiny marking:
To hold that the strict scrutiny test applies to legislation of this sort would be to
render automatically suspect every statutory classification made by state
legislatures in dealing with matters which today occupy a substantial portion of
their time and attention. If the test which plaintiffs seek to apply is the
appropriate standard here, then a state, on each occasion that a similar Fourteenth
Amendment attack were made against a statute dealing w'ith health, education or
welfare, would be required to bear the burden of proving the existence of a
compelling state interest. This Court cannot conclude that state legislatures are to
be straitjacketed by such recently evolved constitutional theory in areas that have
traditionally been the exclusive concern of the state.48
Yet in denying the motion to dismiss, the court noted that many factual issues were in
dispute and the relationship of educational quality to funding levels and the effect of the state
funding formulae on disparities in light of equal protection claims remained to be addressed at
trial.

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San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (U.S. 1972)
This suit was initiated by parents of children who attended the elementary and secondary
schools in the Edgewood Independent School District, an urban district in San Antonio. Texas.
This was a class action suit on behalf of students throughout the state who were poor or members
of a minority group and attended schools in districts having a low property tax base. They
claimed that the Texas system of educational funding, predominantly reliant on local property
taxes violated equal protection requirements in light of substantial mterdistrict disparities in per
pupil expenditures. The District Court for the Western District of Texas affirmed49 the lower
court’s ruling in favor of the appellees in this case, finding that wealth was a suspect
classification and that education was a fundamental right. As such, it was further determined that
the state had failed to demonstrate a compelling interest, subject to strict scrutiny, for the funding
system, hence it was unconstitutional. On appeal to the Supreme Court, the decision of the district
court was reversed.
Justice Powell, author of the majority opinion, found that the system did not disadvantage
any suspect class. Key was the finding that no definable class had been shown. Further, he
determined that the state’s funding scheme did not result in an absolute deprivation of a benefit, a
distinguishing characteristic of individuals or groups of individuals who constituted the class
discriminated against in precedents of the Court, marking:
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.50
Powell wrote, “[f]or these two reasons—the absence of any evidence that the financing
system discriminates against 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.”51 Reference in the majority opinion was made to the District Court’s reliance
on an affidavit submitted by Joel S. Burke of Syracuse University demonstrating a positive

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correlation between the wealth of school districts (measured in terms of assessable property per
student) and the level of per pupil expenditures.52 However, the Court determined that in fact the
study did not evidence that expenditures on education were dependent on personal wealth. It
marked that Berke’s survey of approximately 10 percent of school districts in Texas indicated that
the wealthiest districts in the sample had the highest median family incomes and spent the most
on education and the poorest districts had the lowest family incomes and spent the least amount
on education. However, in the remainder of the sample, nearly 90 percent, the Court observed
that the correlation was inverted, therefore, “no factual basis exists upon which to found a claim
of comparative wealth discrimination.”53 In reference to the identification of a suspect class,
Powell wrote:
[I]t is clear that appellee’s 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 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
suspectedness; the class is not saddled with such disabilities, or 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.54
Considering the treatment of education as a fundamental right, while acknowledging the
importance of education, the majority opinion noted, “the answer lies in assessing whether there
is a right to education explicitly or implicitly guaranteed by the Constitution,”55 and that “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.”56 The appellees had
contended that education was unique due to its relationship to other rights and liberties accorded
protection under the Constitution such as speech and the right to vote. In addressing this
presumed nexus, the Court stated that it had “long afforded zealoias protection against
unjustifiable governmental interference with the individual’s right to speak and to vote. Yet we
have never presumed to possess either the ability or the authority to guarantee to the citizenry the
most effective speech or the most informed electoral choice.”57 Further, in reference to the current

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system in Texas, “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.”58
The decision moved beyond the inappropriateness of the strict scrutiny test in expressing
its hesitancy to interfere in the state’s tax structure. The Court noted, “[w]e are asked to condemn
that State’s judgment in conferring on political subdivisions the power to tax local property to
supply revenues for local interests. In so doing, the appellees would have the Court intrude in an
area in which it has traditionally deferred to state legislatures.”59 Further, the Court pointed out
that “[n]o scheme of taxation, whether the tax is imposed on property, income, or purchases of
goods and services has yet been devised which is free of all discriminatory impact.”60 The Court
also held that despite “conceded imperfections” the education funding formula in Texas bore a
rational relationship to a legitimate state purpose. It opined that the Texas system of education
finance responded to the desire of society to have educational opportunities for all children and
the concerns of each individual family to secure the basic education for their children that they
could afford. Central to the argument was the maintenance of local control, a critical
characteristic of America’s public education system according to the Court due to:
[T]he opportunity it offers for participation in the decision making process that
determining how those local tax dollars will be spent. Each locality is free to
tailor local programs to local needs. Pluralism also affords some opportunity for
experimentation, innovation, and a healthy competition for educational
excellence.61
The appellees argued, and Justice Marshall stressed in his dissent, that in fact reliance on
local property taxation provided less freedom of choice for poorer district due to fiscal
constraints. Acknowledging this, the Court nonetheless found:
[T]he existence of ‘some inequality’ in the manner in which the State’s rationale
is achieved is not alone a sufficient base for striking down the entire
system...Nor must the financing system fail because, as appellees suggest, other
methods of satisfying the State’s interest, which occasion ‘less drastic’ disparities
in expenditures, might be conceived. Only where state action impinges on the
exercise of fundamental constitutional rights or liberties must it be found to have
chosen the least restrictive alternative.62

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The opinion concluded that “the consideration and initiation of fundamental reforms with
respect to state taxation and education are matters reserved for the legislative processes of the
various States, and we do no violence to the values of federalism and separation of powers by
staying our hand.”63
The dissent made greater use of statistical measures. Justice White raised the issue of
taxpayer equity, citing the far greater revenues the wealthier districts could raise applying the
same tax rate used by a poorer district.64 He noted that of the two districts in question, Alamo
Heights and Edgewood, the former could generate approximately $330 per pupil in local revenues
applying an equalized tax rate of 85 cents per $100 assessed valuation, while the later could raise
$26 per pupil with a tax rate of $1.05 per $100 assessed valuation.65 The dissent remarked that
“the State aims at maximizing local initiative and local choice by permitting school districts with
property tax bases so low that there is little if any opportunity for interested parents, rich or poor
to augment school district revenues.”66
Justice Marshall, also in dissent, noted the disparities in inputs as measured as teacher
quality using the indices of college degrees and the utilization of emergency certifications, in
addition to teacher-student ratios.67 For Marshall, the majority’s contention that there was no
indication that Texas failed to provide each student with an adequate educational opportunity was
refuted by the evidence of disparities. His dissent included appendices summarizing the findings
of Joel Burke, utilized by the District Court. Burke employed a consideration the range of local
revenues per pupil, state revenues per pupil, state and local revenues, federal revenues and total
revenues of 110 districts ranging in market value of taxable property per pupil from greater than
$100,000 to below $10,000.68 Referencing the demonstration of significant disparities, Justice
Marshall opined:
[Ajppellees have made a substantial showing of wide variations in educational
funding and the resulting educational opportunity afforded to the schoolchildren
of Texas. This discrimination is, in large measure, attributable to significant
disparities in the taxable wealth of local Texas school districts. This is sufficient

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to raise a substantial question of discriminatory state action in violation of the
Equal Protection Clause,69
Robinson v. Cahill, 303 A.2d 273 (N.J. 1973)
The Supreme Court of New Jersey modified, and as modified, affirmed the judgment of
the Superior Court of New Jersey in Robinson v Cahill, {Robinson I).70 In that case, from 1972,
the lower court ruled that the New Jersey system of financing education denied equal protection
rights guaranteed by the New Jersey and Federal Constitutions. Due to the state’s heavy reliance
upon local taxes, the court found that it discriminated against pupils and districts with low
property wealth and imposed unequal burdens on taxpayer to support a common state purpose.
The Supreme Court of New Jersey, in the wake of the United States Supreme Court decision in
Rodriquez71 turned aside that aspect of the finding that was based upon the lower court’s reading
of the Federal Constitution. In addressing a violation of the state constitution’s equal protection
demand, the majority expressed a hesitancy to endorse the lower court. The court spoke to the
ramifications, noting:
It must be evident that the rudimentary scheme of local government is implicated
by the proposition that the equal protection clause dictates statewide
uniformity...This is so unless it can be said that the equal protection clause holds
education to be a thing apart from other essential services which also depend
upon local legislative decision with respect to the dollar amount to be invested.72
In rejecting categorizing wealth as a suspect classification, the majority opined, “[i]t is
inevitable that expenditures per resident will vary among municipalities, resulting in differences
as to benefits and tax burden. If this is held to constitute classification according to ‘wealth’ and
therefore ‘suspect’ our political structure will be fundamentally changed.”73 The New Jersey
Supreme Court also rejected the Superior Court’s finding of education as a fundamental right, a
determination predicated upon the proposition that a service the state decides to furnish therefore
becomes one of fundamental rights. In agreeing with the lower court that the education finance
system was indeed unconstitutional, the majority chose to base their conclusion upon a reading of

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the state constitutional mandate to “provide for the maintenance and support of a thorough and
efficient system of free public schools for the instruction of all children in this state between the
ages of five and eighteen years.”74 The lower court detailed a consideration of range among
assessed values per pupil, current expenses per pupil, teacher salaries per pupil, and professional
staff. Each county was treated independently, the figures noted for each district in same, with the
state mean for all indices included for comparison.75 Referencing the disparities of funding the
high court found:
The constitutional mandate could not be said to be satisfied unless we were to
suppose the unlikely proposition that the lowest level of dollar performance
happens to coincide with the constitutional mandate and that all efforts beyond
the lowest level are attributable to local decisions to do more than the State was
obliged to do.76
Considering the education article’s ‘thorough and efficient’ clause, the opinion noted that
“the Constitution’s guarantee must be understood to embrace that educational opportunity which
is needed in the contemporary setting to equip a child for his role as a citizen and as a competitor
in the labor market.”77 The lower court had expressed an optimistic hope that the state’s
legislative initiatives then just underway would address the serious discrepancies, however the
New Jersey Supreme Court was far more pessimistic, writing:
Upon the record before us, it may be doubted that the thorough and efficient
system of schools...can realistically be met by reliance upon local taxation. The
discordant correlations between the educational needs of the school districts and
their respective tax bases suggest any such effort would likely fail....78
Stating that any relief must be prospective by necessity, the opinion, in consideration of
remedies, remarked that “since government must go on, and some period of time will be needed
to establish another statutory system, obligations hereafter incurred pursuant to existing statutes
will be valid in accordance with the terms of the statutes.”79

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Shofstall v. Hollins, 515 P.2d 590 (Ariz. 1973)
The Supreme Court of Arizona reversed and remanded the judgment of a lower court that
granted summary judgment for plaintiff taxpayers on the grounds that the system of education
finance was discriminatory. In addition, trial court while finding for the taxpayers, ruled plaintiff
students had not suffered injury or inequality and denied their motion for summary judgment. In
reversing the summary judgment for the taxpayers the high court wrote, “we believe that the
taxpayers here are in no better posture than taxpayers of various governmental units sharing
unequal tax impositions in providing other essential functions.”80 That taxpayers in one district
experienced different tax burdens than those of citizens in another district was not in violation of
equal protection demands. Significantly, the Arizona Supreme Court distinguished education as a
fundamental right under the state’s constitution. Yet, in reference to equal protection claims, the
opinion noted:
A school financing system which meets the educational mandates of our
constitution, i.e., uniform, free, available to all persons aged six to twenty-one,
and open a minimum of six months per year, need otherwise be only rational,
reasonable and neither discriminatory nor capricious.81
Finding Arizona’s funding formula to be in accordance with these standards, the court
ruled that it meet the equal protection demands of the State and Federal Constitutions.
Milliken v. Green, 212 N.W.2d 711 (Mich. 1973)
The Supreme Court of Michigan granted a rehearing in the instance of Governor v. State
Treasureri2 that found that Michigan’s system for financing public education denied equal
educational opportunity under the Equal Protection Clauses of the Michigan Constitution and the
Fourteenth Amendment of the Federal Constitution. The Supreme Court determined that the
complaint in the issue should be dismissed and the opinion vacated. In this case, coming after the
United States Supreme Court’s Rodriquez83 ruling, the justices considered the question under the
Michigan Constitution. Opponents of the education financing system, according to the court

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reduced the argument to “whether ‘fundamental interests’ and ‘suspect classifications’ are
present.”84 In rejecting wealth as a suspect classification, the court noted the defendants’
contention that the discrimination in public school financing did not involve a total deprivation
but rather the fundament right to “educational opportunity.” The court found the concept
ephemeral, referring to it as, “a phrase which has not yet been defined in terms which are both
sufficiently concrete to be used to compare school systems and also broad enough to encompass
more than a tiny portion of the spectrum of opportunity exposures that some have in mind when
they speak of equal educational opportunity.”85 In criticizing the defendants for casting
educational opportunity in terms of taxable resources, the court marked that:
Instead of substantiating with evidence their claims of educational inequities and
demonstrating that a decree of this Court could overcome those inequities, all
have concentrated exclusively on the disparities in taxable resources among local
school districts. Such disparities are, no doubt, a cause of the disparities in per
pupil expenditures that now exist among school districts. Disparities in
expenditures may, indeed, contribute to disparities in educational programs
offered students. Eliminating disparities in taxable resources would alleviate
present disparities in expenditures. But it has not been shown that eliminating
disparities in expenditures will significantly improve the quality or quantity of
educational services or opportunity offered to Michigan school children.86
The court determined, in a demonstration of restraint, that:
It must be apparent by now that we are of the opinion that the state’s obligation
to provide a system of public schools is not the same as the claimed obligation to
provide equality of educational opportunity. Because of the definitional
difficulties and differences in educational philosophy and student ability,
motivation, background, etc., no system of public schools can provide equality of
educational opportunity in all its diverse dimensions. All that can properly be
expected of the state is that it maintain and support a system of public schools
that furnishes adequate educational services to all children.87
The court did make note of disparities as represented by statistical indices, citing the
variation in current operating expenses per pupil and instructional expenses for pupils in the ten
wealthiest school districts and ten poorest school districts.88 It also pointed to comparison
between the ten highest and ten lowest school districts with more than 6,000 pupils. In addition
the court marked the range of per pupil expenditures between the identified wealthiest school
district and poorest.89 However, it noted that an author of a state wide survey of school financing

165
in Michigan (unnamed) found, according to the court, ‘"there is very little evidence that dollar
expenditures, per se, are closely related to achievement. Non-school factors such as environment
and family of the child seem to the leading determinants of his achievement in school.”90
Blase v. State, 302 N.E.2d 46 (Ill. 1973)
The last sentence of Article X, section 1, as constructed in the amended 1970 Illinois
Constitution read: “The State has the primary responsibility for financing the system of public
education.”91 In light of this new provision, plaintiffs in this case before the Supreme Court of
Illinois maintained that the state was now required to provide not less than 50 percent of the funds
needed to maintain and operate public schools. In finding for the defendants, the court held that:
In light of the history of the proposal and the repeated explanation of its principal
sponsor, it cannot be said that the sentence in question was intended to impose a
specific obligation on the General Assembly. Rather its purpose was to state a
commitment, a purpose, a goal.92
While finding that the article in question did not state a specific command, affirming the
ruling of the circuit court, the court did explain that contrary to the defendants’ argument, the
issue did present as a justiciable question, finding that “the controversy is real and that substantial
interests involved are practical and financial, rather than ‘political,’”93 yet the court did not
entertain the matter beyond its declaration.
State ex. rel. Woodahl v. Straub, 520 P.2d 776 (Mont. 1 974)
Respondents in this case before the Supreme Court of Montana charged that the state
statute requiring each county to levy a basic 40-mill tax for public education on property,
essentially took property without due process. Further, they maintained that the state’s foundation
program for financing education did not constitute a rational method of providing public
education. Dismissing the respondents’ contention that revenue raised must be expended in the
county in which it originated, the court ruled that the tax was in fact a state tax thus the legislature

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was free to use the proceeds for any public purpose. Further, it found “[tjhat some areas derive
more immediate and direct benefits from the tax is not an objection, if the community as a whole
benefits.”94 In response to the respondent charge that the foundation program resulted in wide
disparities in educational opportunities, the court commented:
Certainly any reasonable person would grant that there are imperfections in the
foundation formula, with its many variables. The constitutional test is not
perfection, but rather whether when taken as a whole it is a rational method to
accomplish the goal of equal educational opportunity within the state.95
While remarking that the ruling did not foreclose consideration of the foundation plan
and financial limitation, the court found the finance to be in compliance with the state’s
constitutional mandate to provide for and fund a basic education system,96 while leaving
supervision and control to the local district
Northshore School District No. 417 v. Kinnear, 530 P.2d 178 (Wash. 1974)
The Washington Supreme Court rejected the plaintiffs’97 argument that the state’s
educational finance system, significantly based on local property tax, was in violation of the state
constitution’s equal protection demands and Art. 9, Sec. 2 of same that charged the state with the
maintenance of “a general and uniform system of public schools.”98 The court held that the
nature and extent of that duty and the means for carrying out that duty rested with the legislature
and state superintendent of education. Further, the opinion reasoned that the fact various school
districts varied in size and tax base did not necessitate a finding that the state’s financing scheme
failed to provide for a “general and uniform system of public education.” The opinion noted
testimony that detailed the range of basic educational expenditures across the state, observing that
it could not draw the inference that the districts with the highest expenditures per student
provided “superior educational opportunities” than those of other school districts whose similar
expenditures were significantly lower.99 Considering further statistical indices, the court observed
that the standard deviation of basic expenditures, notably when considered in reference to the 158

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districts that contained 95 percent of the student population was not significantly disparate,
pointing to a value of $84 in reference to a mean value of $619.100 Acknowledging the wide
differences in assessed valuations and the consequent differences in revenue, the opinion held that
when the contribution of the state is factor into the funding equation, “the State can prudently
contend that it has surpassed the requirements of a paramount duty and by comparison has done
as good, if not better, a job to meets its State responsibilities.”101 The court concluded:
That the public schools are partly funded with local property taxes does not
deprive the system, we think, of those constitutional qualities described as
general and uniform—for it is the system which must be kept general and
uniform under that provision and not the 320 districts A general and uniform
system, that it, a system which, within constitutional limits of equality, makes
ample provision for the education of all children, cannot be based upon exact
equality of funding... A general and uniform system, we think, is, at the present
time, one in which every child in the state has free access to certain minimum
and reasonably standardized educational and instructional facilities and
• • 102
opportunities....
Thompson v. Engelking, 537 P.2d 635 (Idaho 1975)
The Supreme Court of Idaho reversed a lower court ruling that the state’s public school
financing system was unconstitutional and therefore ordering a restructuring of the system to
provide for equal expenditures per pupil across the state. The high court expressed its reluctance
to enter into what it considered a legislative province, maintaining that to do so would be, “an
unwise and unwarranted entry into the controversial area of public school financing, whereby this
Court would convene as a ‘super-legislature,’ legislating in a turbulent field of social, economic
and political policy.”103 It declined to accept the premise upon which the trial court based its
finding for the plaintiffs on state constitutional grounds;104 which was that “unless a substantially
equal amount of funds are expended per pupil throughout the state, subject only to natural
variances such as sparsity of population, students in those districts receiving less than that district
with the greatest expenditure per pupil are denied equal educational opportunities.”105 It
expressed the concern that in holding local taxation for education purposes unconstitutional,
“similar provisions for the support of other necessary governmental services normally provided

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by local government entities which are customarily financed to a substantia! degree by local
property taxes might be subjected to the same fate.”106 The court ruled that the state
constitutional mandate to establish and maintain general, uniform, and thorough system of public,
free schools did not establish education as a fundamental right nor demand a centralized system
facilitating equal expenditures per pupil. Applying a rational basis test, it ruled:
[T]he Legislature, acting in its plenary capacity to establish and maintain a
system of public education, has acted rationally and without unconstitutional
discrimination in setting up a system of financing, wherein a large portion of
revenues for the public schools are levied and raised by and for the local school
districts.107
Demonstrating a modicum of restraint, the majority remarked that, in light of the absence
of consensus in reference to the relationship of money and educational, quality and the
parameters thereof, “we refuse to venture in the realm of social policy under the guise of equal
protection of the laws or fundamental right to education. The courts are ill-suited to a task which
is the province of the legislature.”108
Statistical indices were noted in the dissent by Justice Donaldson. Giving credence to the
contention that “resulting differences in expenditure levels per student result in unequal
educational opportunities,”109 the justice noted the range of property values per student between
the wealthiest and poorest district, a statistic he noted not considered by the trial court, despite its
ruling for the plaintiffs. The dissent also pointed to the range across the 115 school districts of
expenditures per pupil from the wealthiest to poorest unified districts in addition to the range of
per pupil expenditures, within their discussion.110 In consideration of the demonstrated disparities,
the dissent approvingly drew attention to the district court’s contention that dollar input did affect
educational quality, citing the lower court’s observation that:
In providing state aid on the basis of formulas designed to ameliorate in part the
dollar disparities generated by a system of local taxation, the Legislature has
acted on the premise that there is a significant connection between the sums
expended for education and the quality of the educational opportunity.111

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People ex. reí., Jones v. Adams, 350 N.E.2d 767 (Ill. App. Ct. 1976)
The question before the Appellate Court of Illinois, Third District, was whether farmers,
as a class, were denied equal protection by the levying of burdensome real estate taxes and
whether the state’s method of financing public education was in violation of the Equal Protection
Clause of the Fourteenth Amendment. Defendants, parents of schoolchildren and farmers, resided
in Franklin County, Illinois, although the record did not demonstrate which fit within either or
both of these categories. In reference to the education charge, defendants contended that the
financing formula, reliant upon local real estate taxes, produced significant disparities.
Defendants produced, and court noted, the state mean for assessed valuation per capita and the
mean value revenue per pupil for comparison to corresponding values in Franklin County.112 The
court noted the Supreme Court’s ruling in Rodriquez 113 and pointed to the application of a
constitutional standard referencing equal protection claims not explicitly acknowledged in the
decision. The appellate court observed:
Although the United States Supreme Court purported to apply, in Rodriquez, the
standard of review ordinarily used in equal protection cases, it actually fashioned
another standard which is more restrictive than the ordinary standard, but less
restrictive than the strict standard of judicial scrutiny. The Court first said that the
principle of local control of public schools was valid, and that it justified a
State’s reliance on local real estate taxes in financing public schools. The Court
indicated, however, that discrimination among school districts caused by reliance
upon real estate taxes would be tolerated only if it were not invidious. The
invidiousness of such discrimination is measured by two factors: the adequacy of
the education provided by the school districts of the parties who attack a State’s
method of financing its public schools, and the size of the disparity in
expenditures per pupil between the school districts of those parties and wealthy
school districts in the State. This suggests that a State’s method of financing its
public schools might deny children in especially poor school districts the equal
protection of the laws, and yet might be constitutional with respect to children in
other school districts.114
Noting that the burden of demonstrating the invidiousness of discrimination rested with
the parties who attack the discrimination, the court found that the defendants had failed to
demonstrate what the evidence they produced proved, nor had entertained the adequacy of the

170
education provided in Franklin County. The court also faulted the defendants for not including a
comparison of the per pupil expenditures in Franklin County and the state’s wealthiest districts."5
Olsen v. State, 554 P.2d 139 (Or. 1976)
The Supreme Court of Oregon affirmed a circuit court’s ruling that the state’s public
education funding formula was in accordance with the state’s constitution and did not violate
equal protection demands of same. The court adopted a ‘balancing test’ in considering education
as a fundamental right. They cited this application in lieu of application of whether “the interest is
explicitly or implicitly guaranteed by the Constitution,” the standard established in Rodriquez.1'6
In considering an equal protection question, the court weighed, “[h]ow important is the interest
impinged upon—educational opportunity, as balanced against the state objective in maintaining
the present system of school financing—local control?”117 Acknowledging deficiencies in school
districts with fewer resources, the court nonetheless did not find this sufficient to override the
state’s interest in local control. Plaintiffs had argued that while local control may be a
worthwhile objective, the poorer districts in fact lacked fiscal discretion due to fewer resources
In response, the court found, “[tjhat some districts have less control than others because of the
disparity in the value of the property in the district does not lead to the conclusion that the Equal
Rights Clause has been violated.”118 In reference to the question of the state’s educational clause
calling for the “establishment of a uniform, and general system of Common schools,”119 the court
ruled that the article, “is complied with if the state requires and provides for a minimum of
educational opportunities in the district and permits the districts to exercise control over what
they desire, and can furnish, over the minimum.”120 In a ruling that made specific reference to the
disparities marked by the range of assessed property value per pupil between the wealthiest and
poorest districts and the corresponding expenditures per pupil,121 the court noted that the plaintiffs
had neglected to equate ‘uniformity’ with ‘equality’ beyond that “the amounts available for
providing educational opportunities in ever)' district must approach equality.”122 Thus, the court

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observed, “we assume they do not believe uniformity is required in other areas. We cannot
determine any logical difference between uniformity in finances and uniformity in other areas.”1"3
In affirming the lower court, the opinion concluded that, “[o]ur decision should not be interpreted
to mean that we are of the opinion that the Oregon system of school financing is politically or
educationally desirable. Our only role is to pass upon its constitutionality.”124
Scarnato v. Parker, 415 F. Supp. 272 (M.D. La. 1976)
This action before the United States District Court for the Middle District of Louisiana
challenged the statutory design under which revenues were allocated to parishes and city school
systems to fund a minimum foundation program of education. Plaintiffs contended that the
funding system violated the state constitution in that it did not provide an equitable allotment of
funds,125 and also denied them equal protection of the law as required by the Fourteenth
Amendment of the Federal Constitution. The complaint focused upon the equalization formula
included in the provision of a minimum foundation program. Locales were precluded from
exacting a rate greater than 5 mills, the amount of such levy to be deducted from the state’s
contribution. Plaintiffs, particularly those of the Orleans Parish, charged that due to the arbitrary
disparities in assessed property values, school districts such as theirs with higher assessments
were penalized in violation of equal protection demands. The court held that there was no
evidence that the plan discriminated against any definable category of poor people or resulted in
the deprivation of a minimum foundation education. In entertaining if a justiciable claim had been
presented based upon district wealth discrimination, the court relifed upon the United States
Supreme Court’s reasoning in Rodriqueznb quoting the observation that “it has simply never been
within the constitutional prerogative of this Court to nullify statewide measures for financing
public services merely because the burden or benefits thereof fall unevenly depending upon the
relative wealth of the political subdivisions in which citizens live.”127 Expressing a hesitancy to

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expand its judicial prerogative, the court again referenced the reasoning of the nation’s high court,
remarking that the justices were:
[Ujnwilling to assume for ourselves a level of wisdom superior to that of
legislators, scholars, and educational authorities in fifty States, especially where
the alternatives proposed are only recently conceived and nowhere yet tested.
The constitutional standard under the Equal Protection Clause is whether the
challenged State action rationally furthers a legitimate State purpose or
interest.128
While failing to find evidence of an invidiously discriminatory practice, the court did
observe that the state constitution of 1974 did mandate uniform statewide assessments, but that
legislative initiatives were currently underway to fulfill that mandate. Finding no federal equal
protection violation, the opinion concluded with a dismissal of the equal protection claim asserted
under the Louisiana Constitution reasoning that “[njeedless decisions of state law should be
avoided both as a matter of comity and to promote justice between the parties, by procuring for
them a surer-footed reading of applicable law.”129
Buse v. Smith, 247 N.W.2d 141 (Wis. 1976)
The Supreme Court of Wisconsin, in a case which specifically addressed a recapture
provision, found that the negative-aid provision of the state school district financing system was
in violation of the state’s constitutional rule of uniform taxation.130 Under the statutes certain
districts would be required to pay a portion of local property tax revenues into the general state
funds for redistribution to other districts in the state. The opinion noted that this power
equalization legislation was in part based on the premise that student equality of educational
opportunity resulted when, “regardless of a school district’s actual property valuation, its tax levy
rate for school purposes produces the same net amount of available school revenue as the same
tax levy rate in every other like school district; and...there are no per-pupil spending disparities
between districts.”131

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In dismissing that assumption, the court opined that “[ejquality of opportunity for
education is equated with the right of all school children to attend a public school free of charge
and without charge for tuition....”132 In reference to a concern that the presence of disparities,
which the negative aid provisions were designed to ameliorate, were in violation of the
constitutional mandate “for the establishment of district schools, which shall be as nearly uniform
as practicable,”1'3 the court stated that “[w]hether absolute equality in all school districts of the
state is socially desirable, is not for this court to decide. We can only conclude that the plain
meaning of sec. 3, art. X (educational clause) does not mandate it.”134 The court affirmed that
“the right to equal opportunity for education is a fundamental right guaranteed by the Wisconsin
Constitution,”135 while ruling “that the state cannot compel one school district to levy and collect
a tax for the direct benefit of other school districts, or for the sole benefit of the state.”136
Serrano v. Priest, 557 P.2d 929 (Cal. 1976)
The Supreme Court of California affirmed a trial court’s ruling that the state’s system of
financing public education remained in violation of the state’s equal protection provisions,
although not the Federal Constitutions in light of the Rodriquez ruling.137 In a prior ruling the
supreme court had ruled that the financing formula was in violation of both California and
Federal Constitution Equal Protection Clauses.138 In reference to equal protection, the court noted
that although decisions of the United States Supreme Court must be afforded consideration, they
need be followed by California courts only when they provide no less individual protection than
the state statute. Therefore the state’s equal protection provision may engender a different
analysis from that which would be afforded if only the federal standard were applicable. Thus the
court maintained that for state equal protection purposes, discrimination in educational
opportunity on the basis of district wealth impacted a suspect classification and education,
identified as a fundamental right, reaffirming it holding in Serrano I. The court once again
referenced the significant range of assessed valuations per pupil and per pupil expenditures for

174
the 1969-1970 school year.139 The court noted intervening state legislation that increased the
foundation funding level and the creation of‘revenue limits,’ or limitations on maximum
expenditures per pupil. However the court ruled that these measures would fail to negate the anti¬
equalizing effect of a system that “will continue to generate school revenue in proportion to the
wealth of the individual district.”140 The opinion detailed an acceptable range in per pupil
expenditures, citing as “insignificant” those “amounts considerably less than $100.00 per
pupil.. ,.”141 The court concluded that, “[substantial disparities in expenditures per pupil among
school districts cause and perpetuate substantial disparities in the quality and extent of availability
of educational opportunities. For this reason the school financing system before the court fails to
provide equality of treatment to all pupils in the state.”142
Horton v. Meskill, 376 A.2d 359 (Conn. 1977)
The Supreme Court of Connecticut affirmed in part a lower court’s ruling that the state’s
system of financing public education violated the Connecticut Constitution’s equal protection
clause and education article.143 In the wake of the United States Supreme Court’s ruling in
Rodriquez144 the supreme court reversed the finding that the funding system violated the Federal
Constitution. In a state in which education was predominantly supported by local taxes, the court
utilized the demonstrated range and mean of per pupil expenditures, categorizing the state’s
school districts into deciles based on valuation per pupil.145 Upon examination, the court
commented that:
The wide disparities that exist in the amount spent on education by the various
towns result primarily from the wide disparities that exist in the taxable wealth of
the various towns; the present system of financing education in Connecticut
ensures that, regardless of the educational needs or wants of children, more
educational dollars will be allotted to children who live in property-rich towns
than to children who live in property-poor towns.146
The court, citing the trial court, reiterated the characteristics of a ‘quality education’ to include:
(a) sizes of classes; (b) training, experience and background of teaching staff; (c)
materials, books and supplies; (d) school philosophy and objectives; (e) type of

175
local control; (f) test scores as measured against ability; (g) degree of motivation
and application of the students; (h) course offerings and extracurricular...14'
In consideration of these indices, the opinion observed that:
[T]he optimal version of these criteria is achieved by higher per pupil
expenditures and because many of the elements of a quality education require
higher per pupil expenditures and because many of these elements of a quality
education require higher per pupil operating expenditures, there is a direct
relationship between per pupil school expenditures and the breadth and depth of
educational programs.148
Marking education as a fundamental right, the application of strict scrutiny compelled the
court to find the funding statutes to be in violation of the state’s equal protection demands.
Further, in light of the significant disparities, in remanding the case, the opinion noted that the
state had failed to meet the state constitution’s educational clause mandate to implement
“appropriate legislation.”
Seattle School District No. 1 of King County v. State, 585 P.2d 71 (Wash. 1978)
In what may arguably be the first adequacy case, the Supreme Court of Washington
affirmed a lower court ruling that the state’s public education financing system was
unconstitutional, effectively overturning Northshore School District v. Kinnear,149 Of particular
note was the state’s reliance upon special excess levy funding to meet each district’s fiscal needs.
The trial court ruled, and the supreme court agreed, that such an arrangement was
unconstitutional as it failed to make “ample provision” for the education of its resident children as
required by the state’s constitution.150 The court ruled that, “there can be compliance with the
State’s mandatory duty only if there are sufficient funds derived from dependable and regular tax
sources to permit school districts to carry out a basic program of education.”151 It maintained that
the special excess levy was neither dependable nor regular, noting it, “is wholly dependent upon
the whim of the electorate and is then available only a temporary basis.”152 The court held that
the state’s educational clause was unique in that it called upon the state to make “ample

176
provision,” not merely insuring the presence of a “general and uniform” school system. Further,
marking that the constitution made this mandate a “paramount duty” of the state, the court had no
reservation about intruding on a strictly legislative domain, writing:
It is also significant that the paramount duty is imposed upon the ‘State’ rather
than any one of the three coordinate branches of government. Had the framers
intended Legislature alone, as appellants contend, they would have so
provided...the constitutional convention did not choose this alternative even
though the framers clearly understood the differences between the “State” and
“Legislature.”153
The dissent, however, lamented the court’s general usurpation of the legislative
prerogative in the ruling. Justice Rosselini commented:
I would be surprised to learn that the people of this state are willing to turn over
to a tribunal against which they have little if any recourse, a matter of grave
concern to them and upon which they hold so many strong, conflicting views. If
their legislators pass laws with which they disagree or refuse to act when the
people think they should, they can make their dissatisfaction known at the
polls...A legislature may be a hard horse to harness, but it is not quite the
stubborn mule that a court can be. Most importantly, the court is not designed or
equipped to make public policy decisions....154
The case did not entertain an equal protection claim therefore the nature of the education
provided, not equity, was in question. The court held that:
[T]he State’s constitutional duty goes beyond mere reading, writing and
arithmetic. It embraces broad educational opportunities needed in the
contemporary setting to equip our children for their role as citizens and as
potential competitors in today’s markets as well as in the market of
ideas...[therefore] While the judiciary has the duty to construe and interpret the
word ‘education’ by providing broad constitutional guidelines, the Legislature is
obligated to give specific substantive content to the word and to the programs it
deems necessary to provide that ‘education’ within the broad guidelines.155
To demonstrate fidelity with the state constitution, the state was not required to provide a
“total education,” but was obligated to furnish a “basic education.” Declining, as did the trial
court, the respondent’s prayer that the court establish, as a matter of constitutional law, standards
by which a “basic education” could be measured, the supreme court ruled that the “[legislature
must hereafter act to comply with its constitutional duty by defining and giving substantive
meaning...”156 to a “basic education.” As to remedy, the opinion stated that, “[w]hile the
Legislature must act pursuant to the constitutional mandate to discharge its duty, the general

177
authority to select the means of discharging that duty should be left to the Legislature.”157
Considering funding requirements, the supreme court did entertain three models of a “basic
education,” factored by the trial court,158 and concluded, ‘‘despite the definition used for
‘education,’ under the existing law the State has not made ‘ample provision’. ...”159 Operating on
the assumption that the “[legislature will comply with the judgment and its constitutional
duties,”160 the court declined to retain jurisdiction. In an concurring opinion, Justice Utter, while
agreeing that, “local school districts may not be financed by a funding scheme whereby any
substantial part of the total school budget is subject to local veto,”161 countenanced a limited
holding believing that the decision was in err by finding in the constitution a mandate to mark a
specific “basic education” to be provided to the state’s students. Referring to a “basic education”
the concurring opinion observed that, “for the court to cast in terms of a constitutional doctrine
the meaning of this term properly subjects it to the criticism voiced in the dissent, and depri ve the
people of this state of a continuing legislative and political dialogue on what constitutes a proper
education.”162
Danson v. Casey, 399 A.2d 360 (Pa. 1979)
In this case before the Supreme Court of Pennsylvania, appellants argued that the state
statutoiy system by which the School District of Philadelphia was funded violated the state
constitutional mandate to “provide for the maintenance and support of a thorough and efficient
system of public education....”163 With local tax revenues serving as the major source of funding,
appellants alleged that in light of the unique classification of the district, they were “being denied
a ‘normal program of educational services’ available to all other children in Pennsylvania....”164
The court noted that, “[njowhere do appellants allege that any Philadelphia public student is, has,
or will, suffer any legal injury as a result of the state financing scheme...[and no allegation] that
the children of Philadelphia are being denied an “adequate,” “minimum,” or “basic”
education.”165

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Observing that the words “thorough and efficient"' must be broadly construed,'66 the court
determined that uniformity was not required. Further, distinguishing this case from other state
jurisdictions which overturned state education financing distribution formulas in light of
significant revenue disparities, the supreme court marked that the Philadelphia School District
ranked 5th of 505 statewide districts in expenditures per pupil.'67 Considering the constitutional
mandate, the court opined that:
Even were this Court to attempt to define the specific components of a “thorough
and efficient education” in a manner which would foresee the needs of the future,
the only judicially manageable standard this Court could adopt would be the rigid
rule that each pupil must receive the same dollar expenditures. Even appellants
recognize, however that expenditures are not the exclusive yardstick of
educational quality, or even educational quantity...The educational product is
dependant upon many factors, including the wisdom of the expenditures as well
as the efficiency and economy with which available resources are utilized.168
Affirming the holding of the Commonwealth Court and the constitutionality of the state
public education funding system, the supreme court noted that, “it may not abrogate or intrude
upon the lawfully enacted scheme by which public education is funded, not only in Philadelphia,
but throughout the Commonwealth.”169
Pauley v. Kelly, 255 S.E.2d 855 (W.Va. 1979)
The Supreme Court of Appeals of West Virginia reversed and remanded a lower court’s
ruling170, determining that education under the West Virginia Constitution was a fundamental
right and that the current funding structure was in violation of both the state’s equal protection
provisions and the mandate to provide a “thorough and efficient” system of schools.17' After a
consideration of the “thorough and efficient” clauses in other state constitutions and the historical
record, the court defined such a system. The court remarked that, “[i]t develops, as best the state
of education expertise allows, the minds, bodies and social morality of its charges to prepare them
for useful and happy occupation, recreation and citizenship, and does so economically.”172
Further delineating the contours of “thorough and efficient,” the opinion directed that:

179
Legally recognized elements in this definition are development in ever)' child to
his or capacity of (1) literacy; (2) ability to add, subtract, multiply and divide
numbers; (3) knowledge of government to the extent that the child will be
equipped as a citizen to make informed choices among persons and issues that
affects his own governance; (4) self- knowledge and knowledge of his or her total
environment to allow the child to intelligently choose life work—to know his or
her options; (5) work-training and advanced academic training as the child may
intelligently choose; (6) recreational pursuits; (7) interests in all creative arts,
such as music, theatre, literature, and the visual arts; (8) social ethics, both
behavioral and abstract, to facilitate compatability [sic] with others in this
. 173
society.
Relying on the circuit court’s findings,174 the supreme court applied the legal elements it
had noted and determined that the education provided in the county (Lincoln) in direct question
was severely inadequate.175 In an opinion bereft of statistical indices, the court concluded:
Our basic law makes education’s funding second in priority only to payment of
the State debt, and ahead of every other State function. Our Constitution
manifests throughout, the people’s clear mandate to the Legislature, that public
education is a prime function of our State government. We must now allow that
command to be unheeded.176
In dissent, Justice Neely, observed in reference to “thorough and efficient,” that:
[I]t is far too unmanageable a standard to be developed in a vacuum devoid of
political give and take by the logical judicial mind, because inherent in any
consensus about “thorough and efficient” education, is a difficult balance
between irreconcilable value systems. I have my own ideas of what constitutes
“thorough and efficient” education; nonetheless, I am constitutionally restrained
not to force them down the throats of other equally well-informed persons who
have different values merely because I am a judge.177
Cautioning against judicial zeal, he opined that the school financing system, “is the result
of political bargaining and must be corrected through political bargaining if the result is to have
any legitimacy.”178
Board of Education of the City School District of the City of Cincinnati v. Walter,
390 N.E.2d 813 (Ohio 1979)
The Supreme Court of Ohio reversed in part and affirmed in part a lower court’s ruling
that the state’s statutory plan for financing education violated the equal protection clause of the
Ohio Constitution but was not in violation of the constitutional requirement that the General

180
Assembly provide a ‘thorough and efficient system of public schools.'79 Disdaining the United
State Supreme Court’s understanding of a fundamental right as enunciated in Rodriquez,180 the
Ohio court applied the logic in Robinson181 and weighed the right in question against the state’s
justification. As such it chose to employ a rational basis test and in its application ruled “local
control to be a rational basis supporting Ohio’s system of financing elementary and secondary
education....”182 In defining local control the court stated, “we mean not only the freedom to
devote more money to the education of one’s children but also control and participation in the
decision-making process as to how those local tax dollars are to be spent.”183 While ruling that
the question of the legislation passed by the General Assembly pursuant to the constitutional
education mandate presented a justiciable controversy,184 the court cited the court of appeals,
“[bjecause the constitutional grant reinforces the ordinary discretion reposed in the General
Assembly in its enactment of legislation, the judicial department of this state should exercise
great circumspection before declaring public education unconstitutional....”185
Having outlined a cautionary application of judicial review, the court found that “the
General Assembly has not so abused its broad discretion in enacting the present system of
financing public education to render the statutes in question unconstitutional.”186
Washakie Co. School District v. Herschler, 606 P.2d 310 (Wyo. 1980)
The Supreme Court of Wyoming reversed a lower court’s ruling, determining that the
Wyoming system of financing public education failed to afford equal protection in violation of
the Wyoming Constitution. In holding that the state’s foundation program did not equalize the
amounts available to school districts throughout the state, the court made specific reference to the
range in assessed valuation per student across the districts in addition to the state mean.187 In an
observation similar to that offered in Serrano I, the supreme court noted:
These disparities demonstrated throughout by the various statistical tables can
lead to but one conclusion: the quality of a child’s education in Wyoming,
measured in terms of dollars available for that purpose, is dependant upon the

181
property tax resources of his school district. The right to an education cannot
constitutionally be conditioned on wealth in that such a measure does not afford
equal protection.168
Noting the emphasis the state constitution placed upon education, the court determined
that education was a fundamental right189 and further a classification on the basis of wealth is
suspect. In addition to finding a violation of equal protection demands when subjected to strict
scrutiny, the court also made mention of the relationship of money and education, conceding that,
“[tjhere is some general disagreement over the degree to which money counts...[however] It is
our view that until equality of financing is achieved, there is no practicable method of achieving
equality of quality.”190
The opinion reasoned that the disparities noted and the state’s failure to “make any
showing that other methods are not available or possible,”191 was not compatible with the
constitutional charge requiring a “uniform system of public education.”
McDaniel v. Thomas, 285 S.E.2d 156 (Ga. 1981)
Ruling on a declaratory judgment, the Georgia Supreme Court held that the state’s
existing system of financing education was not violative of state equal protection demands, nor
was it unconstitutional when measured against the Georgia Constitution’s call for the “provision
of an adequate education.”192 Plaintiffs-appellees, comprised of parents, children, and school
officials from school districts that evidenced relatively low' property tax bases, had witnessed a
lower court finding for them on an equal protection claim, while rejecting the charge predicated
upon the denial of an adequate education. The opinion of the supreme court, in an appeal and
cross appeal action, took particular note of the funding variances, employing a demonstration of
the range of per pupil revenues across deciles of school districts, grouped according to relative
wealth.193 In a measure of range specific to individual districts, it noted the spread in assessed
valuation per pupil and expenditures per pupil.194 Detailing the tangible effects of the funding
discrepancies, the supreme court agreed with the lower court, citing its finding that:

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[Similarly situated children receive very different amounts of educational
resources as a result of disparities among school districts in taxable property
wealth per pupil...The inequalities in the school finance system deny students in
property-poor districts equal educational opportunities.195
However, in its consideration of the state constitution it concluded that there was no
“provision relating to the obligation of the General Assembly to equalize educational
opportunities.”196 Having determined that the term “adequate education” did not demand equal
educational opportunities, the Court turned to what constituted an “adequate education” and
whether some districts were so deficient in basic areas so as to fail to meet the constitutional
standard. Recognizing that it lay beyond a minimum which provided basic skills, the court noted
the difficulties in establishing judicially manageable standards for assessment of an adequate
education and deferred to the legislature, writing that, “while an ‘adequate’ education must be
designed to produce individuals who can function in society, it is primarily the legislative branch
of government which must give content to the term ‘adequate.’”197 Ruling that education was not
a fundamental right, the court concluded that the state system satisfied the rational relationship
test, in that it was in accord with the state’s design to provide a basic education and the
preservation of “the idea of local contribution.”198 The court did conclude, in light of the
demonstrable funding disparities, that:
Our holding that the current system of financing public education in Georgia is
not unconstitutional should not be construed as an endorsement by this court of
the status quo...It is clear that a great deal more can be done and needs to be
done to equalize educational opportunities in this state. For the present, however,
the solution must come from our lawmakers.199
Plyler v. Doe, 457 U.S. 202 (U.S. 1982)
This case before the United States Supreme Court addressed the constitutionality of a
Texas statute which withheld from local school districts any state funds for the education of
children of parents who were not legally admitted into the United States. Although the issue at
hand did not fit neatly within the confines of a education finance case, particularly as defined as
considering state wide funding systems, Plyler v. Doe,200 merits inclusion in a chronological

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review of school finance litigation due to the Court’s demonstrated evolving conception of
education vis-á-vis fundamental rights/01 The Supreme Court affirmed the judgment of the
United States Court of Appeals for the Fifth Circuit that the state statute violated the Equal
Protection Clause of the Fourteenth Amendment.202 In a five to four decision, the Court
determined that neither the undocumented status of the students nor the state’s expressed interest
in preserving limited education resources presented as furthering a substantial goal to establish a
rational basis for a discriminatory statute. The Court introduced an intermediate scrutiny standard
in the treatment of an equal protection claim. While noting the deference paid to a legislative
classification under a rational basis test, and the appropriate strict scrutiny standard called for in
reference to fundamental rights and suspect classifications, the Court observed:
[W]e have recognized that certain forms of legislative classification, while not
facially invidious, nonetheless give rise to recurring constitutional difficulties; in
these limited circumstances we have sought the assurance that the classification
reflects a reasoned judgment consistent with the ideal of equal protection by
inquiring whether it may fairly be viewed as furthering a substantial interest of
the State.203
The Court found no basis for categorizing illegal aliens as a suspect class and, citing
Rodriquez,204 reaffirmed that education was not a right guaranteed in the Constitution. However,
the Court elevated education in a sense, marking that it was not:
[Mjerely some governmental “benefit” indistinguishable from other forms of
social welfare legislation. Both the importance of education in maintaining our
basic institutions, and the lasting impact of its deprivation on the life of the child,
mark the distinction...[and] education has a fundamental role in maintaining the
fabric of our society. We cannot ignore the significant social costs borne by our
Nation when select groups are denied the means to absorb the values and skills
205
upon which our social order rests.
The Court explained that the case involved more than the “abstract” questions of whether
a fundamental right or suspect class was involved, rather it included the consideration that “[b]y
denying these children a basic education, we deny them the ability to live within the structure of
our civic institutions, and foreclose any realistic possibility that they will contribute in even the
smallest way to the progress of our Nation.”206 Therefore, in light of “these countervailing costs,”

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the discrimination in the Texas statute “can hardly be considered rational unless it furthers some
substantial goal of the State.”207 The Court judged that the Texas law did not serve to effectively
stem the influx of illegal immigrants, nor did it address a threat on educational costs and
resources, the possible effects of which, the Court treated as negligible. Justice Brennan
concluded, in his deliverance of the opinion of the Court, that “[i]f the State is to deny a discrete
group of innocent children the free public education that it offers to other children residing within
its borders that denial must be justified by a showing that it furthers some substantial state
interest. No such showing was made here.”i08 In his dissent, Chief Justice Burger chastised the
majority for applying a “quasi-suspect-class and quasi-fundamental-rights analysis....”209
Concurring with the premise that the importance of education was beyond dispute, the dissent
observed that the importance of a governmental service does not justify its elevation to a
fundamental rights status. The Chief Justice inquired, “[i]s the Court suggesting that education is
more ‘fundamental’ than food, shelter or medical care?”210 The dissenting opinion reasoned that
the “fact that the distinction is drawn in legislation, affecting access to public education—as
opposed to legislation allocating other important governmental benefits, such as public assistance,
health care, or housing—cannot make a difference in the level of scrutiny applied.”211 Calling
attention to the proper role of the judiciary , the dissent marked that “the Court’s holding today
manifests the justly criticized judicial tendency to attempt speedy and wholesale formulation of
‘remedies’ for the failures—or simply the laggard pace—of the political processes of our system
of government.”212 In referencing the presumed effects of the statute detailed by the majority, the
dissent concluded that, “it is for Congress, and not this Court, to assess the ‘social costs borne by
our Nation when select groups are denied the means to absorb the values and skills upon which
our social order rests.’”213

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Lujan v. Colorado State Board of Education, 649 P.2d 1005 (Colo. 1982)
The Supreme Court of Colorado reversed a district court’s finding that the state’s
financing formula for public elementary and secondary education was unconstitutional. The trial
court determined that the system, largely dependent upon local property tax levies, violated the
equal protection provisions of the United States and Colorado Constitutions, in addition to failing
the state constitutional mandate to provide a “thorough and uniform” system of public schools/14
In its equal protection analysis, the supreme court declined to employ the Rodriquez test to
determine the nature of a right in question (explicit or implicit guarantee in constitutional text),
marking that the Colorado Constitution “does not restrict itself to addressing only those areas
deemed fundamental.”215 Accordingly, the court ruled that the education clause did not establish
education as a fundamental right. Moreover, in reference to education and distinct fundamental
rights, the court opined that notwithstanding the crucial role of education, the disparate impact of
the application of the financing system did not amount to a governmental interference with an
individual’s right to speak or vote. The court wrote:
While our representative form of government and democratic society may benefit
to a greater degree from a public school system in which each school district
spends the exact dollar amount per student with an eye toward providing
identical education for all, these are considerations and goals which properly lie
within the legislative domain. Judicial intrusion to weigh such considerations and
achieve such goals must be avoided.216
The court also took exception with the assumption that there was a direct correlation
between school financing and educational quality and opportunity, declining to “venture into the
realm of social policy under the guise that there is a fundamental right to education which calls
upon us to find that equal educational opportunity requires equal expenditures....”217 In its
estimation:
The constitutional mandate which requires the General Assembly to establish a
“thorough and uniform system of free public schools,” is not a mandate for
absolute equality in educational services or expenditures. Rather, it mandates the
General Assembly to provide to each school age child the opportunity to receive
a free education, and to establish guidelines for a thorough and uniform system of
public schools.218

The court also held that no suspect class could be distinguished, ruling that a school
district could not meet the criteria as “the equal protection clause embodies personal rights, and
by its very nature is limited to individuals.”219 In addition the court found that there was no
distinct and insular ‘class’ of poor people in question. Thus failing to establish a fundamental
right or suspect class, the issue was treated to a rational relationship test, under which the court
ruled that the finance system did in fact address the legitimate state purpose of maintaining local
control. It noted three advantages to such a situation, affording, as local control did, the:
[FJreedom to devote more money toward educating its children than is otherwise
available in the state-guaranteed minimum amount...[enabling] the local
citizenry greater influence and participation in the decision making process as to
how these local tax dollars are spent...[and providing] each district with the
opportunity for experimentation, innovation, and a healthy competition for
educational excellence.220
Acknowledging that lack of resources could result in the lower wealth school districts
having less genuine control, the court ruled that, “this result, by itself does not strike down the
entire school finance system.”221 The majority concluded in a note of restraint that:
[W]hether a better financing system could be devised is not material to this
decision, as our sole function is to rule on the constitutionality of our state’s
system. This decision should not be read to indicate that we find Colorado’s
school system to be without fault or not requiring further legislative
improvements. Our decision today declares only that it is constitutionally
permissible.222
In dissent, Justice Lohr observed in that failing to take note of the factual findings of the
trial court, the majority overlooked information that irrefutably demonstrated the failure of the
system to accord equal protection to Colorado school students. To address this contended
oversight, the dissent detailed measures of range and correlation coefficient. Specifically,
comparison was noted of the average capital reserve yield per student, applying the mandated rate
among school district grouped in deciles according assessed valuation. Justice Lohr also detailed
the range of assessed valuation per pupil among school districts and the range of total school
district expenditures per pupil. The dissent also explored the relationship of the authorized

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revenue base223 to assessed valuation per pupil, employing the correlation coefficient. A
correlation coefficient was also employed to gauge the relationship between assessed valuations
per pupil and expenditures per pupil.'24 Noting the moderate to high correlations, the dissent
endorsed the trial court’s conclusion that such disparities resulted in unequal educational
opportunities when assessed among factors including, class size, teacher quality, curricular
offerings and teaching materials and equipment.225
Levittown v. Nyquist, 453 N.Y.S.2d 643 (N.Y. 1982)
In this case before the New York Court of Appeals,226 the original plaintiffs argued that
property rich school districts had the ability to raise greater local tax revenue, allowing them to
provide educational opportunities far beyond that of poorer school districts. Intervening plaintiffs
further contended that although they were not disadvantaged in the ability to raise gross revenue,
the effects of metropolitan overburden effectively negated the economic ability of these urban
districts to adequately fund education. In response, the court ruled that existing provisions for
state funding of public education did not violate the equal protection demands of the Federal or
New York Constitutions and met the state’s constitutional requirement that the legislature provide
for the maintenance and support of a system of free common schools.227 The court acknowledged
that “there are nonetheless significant inequalities in the availability of financial support for local
school districts, ranging from minor discrepancies to major differences, resulting in significant
unevenness in the educational opportunities offered.”228 However, ruling the funding statutes met
equal protection standards, the opinion observed that:
The circumstance that public education is unquestionably high on the list of
priorities of governmental concern and responsibility, involving the expenditures
of enormous sums of State and local revenue, enlisting the most active attention
of our citizenry and of our Legislature, and manifested by express articulation in
our State Constitution, does not automatically entitle it to classification as a
“fundamental right.”229

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Further, the court noted that no classification of persons was present in the case, suspect
or otherwise, rather the claimed unequal treatment was between school districts, compelling it to
conclude that, “No authority is cited to us...[demonstrating]that discrimination between units of
government calls for other than rational basis scrutiny.”230 In light of this analysis, the court
concurred with the state that, “the preservation and promotion of local control of education—is
both a legitimate State interest and one to which the present financing system is reasonably
related.”231 Considering the state constitutional mandate that the “legislature shall provide for the
maintenance and support of a system of free common schools, wherein all the children of this
state may be educated,”232 the court ruled:
Interpreting the term education, as we do, to connote a sound basic education, we
have no difficulty in determining that the constitutional requirement is being met
in this State, in which it is said without contradiction that the average per pupil
expenditures exceeds that in all other States but two.23'1
In reference to the metropolitan overburden argument, the court observed that it could not be
attributed to legislative action or inaction. Further, it remarked that:
While unquestionably education faces competition in the contest for municipal
dollars from other forms of public service for which nonmunicipal schools
districts bear no responsibility, municipal dollars flow into the cities’ treasuries
from sources other than simply real property taxes—sources similarly not
available to nonmunicipal school districts.234
The court reasoned that the decisions concerning the allocation of these funds in addition to real
estate taxes, resided with the municipal government. The opinion expressed a reluctance to enter
into an area properly left to the legislature, commenting:
Because decisions as to how public funds will be allocated among the several
services for which by constitutional imperative the Legislature is required to
make provision are matters peculiarly appropriate for formulation by the
legislative body (reflective of and responsive as it is to the public will), we would
be reluctant to override those decisions...235
However, the court of appeals did note that it may be so compelled at such time was evidenced a
“gross and glaring inadequacy.”236 In dissent, Judge Fuchsberg utilized a demonstration of the
range of operating expenses per pupil across the state to illustrate the extent of disparities which

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the dissenting opinion tied to measures of educational opportunity.237 Further he advocated the
application of an intermediate standard of scrutiny which would acknowledge that equality of
education was an important state constitutional interest and the financing scheme significantly
interfered or infringed upon that interest. Such a test, the dissent contended, would demonstrate a
violation of the state constitution’s equal protection demand. In an additional observation, the
dissent noted the speculative appropriateness of applying strict scrutiny premised on, “the
undisputed fact that the existing education aid formulae have an adverse effect, not only on pupils
from impoverished families, but also on a large percentage of nearly 750,000 ‘minority’ students
(black, Hispanic, American Indian, Asian and others).”238 The opinion noted the “spectre” of an
issue of discrimination particularly in reference to the intervening municipal districts with
particularly high percentages of minority students. Give this dynamic, the dissent cautioned that
dismissal of a Federal Constitution question should not be assumed.
Hornbeckv. Somerset County Board of Education, 458 A.2d 758 (Md. 1983)
The Court of Appeals of Maryland239 vacated a ruling of a circuit court that the state
public school financing system violated the Federal and Maryland Constitutions’ equal protection
provisions and the education article of the Maryland Constitution requiring a “thorough and
efficient” system of free public schools.240 The plaintiffs in the original case charged that in spite
of state funding equalization measures, the dependence on local property tax and the allowance
for local supplementation of funds resulted in severe disparities, a situation aggravated in the City
of Baltimore school district by municipal overburden. The circuit court had noted, and the court
of appeals acknowledged, significant disparities, employing illustrations of the range of assessed
valuations per pupil and expenditures per pupil among designated school districts.241 The
statistics did compel the lower court to conclude that, “a child in the wealthiest subdivision has
approximately twice the amount spent on his education as a child in the poorest subdivision.”242
Subsequent to a review of the circuit court’s findings, the court of appeals addressed the

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educational article. Exhaustively tracing the historical development of the Maryland Constitution
and amendments addressing education, the court concluded the education article’s “thorough and
efficient” clause did not mandate uniformity in per pupil funding or expenditures among the
state’s school districts. The court marked that the state had adopted comprehensive statewide
qualitative standards and that, “no evidentiary showing was made in the present case—indeed no
allegation was even advanced—that these qualitative standards were not being met in any school
district, or that the standards failed to make provision for an adequate education.. ..”24'' In
upholding the constitutionality of the state financing system the court wrote that, “education need
not be ‘equal’ in the sense of mathematical uniformity, so long as efforts are made, as here, to
minimize the impact of undeniable and inevitable demographic and environmental disadvantages
on any given child. The current system, albeit imperfect, satisfies this test.”244 In weighing the
equal protection charge, the court ruled that Rodriquez was wholly dispositive of the federal equal
protection claim, dismissing the plaintiffs contention that the evidentiary statistical indices
distinguished this case, demonstrating as they did, that the great majority of poor students resided
in the poorest school districts and that districts with the poorest families spent the least, thus
constituting an identifiable class. Referencing a state equal protection claim, the court diverged
from Rodriquez, stating:
We decline to adopt the overly simplistic articulation of the fundamental rights
test set forth in Rodriquez, i.e., that the existence of a fundamental right is
determined by whether it is explicitly or implicitly guaranteed in the
constitutions. Maryland’s Constitution explicitly, not to mention implicitly,
guarantees rights and interest which can in no way be considered
“fundamental”...[accordingly] The right to an adequate education in Maryland is
no more fundamental than the right to personal security, to fire protection, to
welfare subsidies, to health care or like vital governmental services....245
Therefore electing to apply a rational relationship standard, the court ruled that “the
Legislative objective of preserving and promoting local control over education is both a
legitimate state interest and one to which the present financing system is reasonably related.”246
Plaintiffs had argued that “heightened review” was appropriate in this case; a standard applied

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when a statute impacts a “sensitive” although not necessarily suspect class or infringes upon or
affects “important” personal rights. The court declined, however it noted that even if heightened
review was employed the current funding system bore a fair and substantial relationship to a
legitimate goal of providing an adequate education for all children while maintaining local
control. Addressing the proper role of the judiciary, the court of appeals concluded:
[I]t is not within the power or province of members of the Judiciary to advance
their own personal wishes or to implement their own personal notions of fairness
under the guise of constitutional interpretation. The quantity and quality of
educational opportunities to be made available to the State’s public school
children is a determination committed to the legislature or to the people of
Maryland through adoption of an appropriate amendment to the State
Constitution.247
Dupree v. Alma School District, 651 S.W.2d 90 (Ark. 1983)
The Supreme Court of Arkansas affirmed a lower court’s ruling that the state’s statutory
method of financing education violated the state constitution’s equal protection demands.
Plaintiffs248 in original case had focused upon dependence on local tax revenues in the
disbursement of state funds and a vocational education funding formula that required local fiscal
support before establishing eligibility for state funds. They contended, and the supreme court
concurred, that “the great disparity in funds available for education to school districts throughout
the state is due primarily to the fact that the major determinative of revenue for school districts is
the local tax base, a basis unrelated to the educational needs of any given district....”249 The
majority opinion made note of both the range and restricted range of district expenditures per
student and assessed valuations per student to illustrate significant disparities.250 The court made
note of Robinson’s251 employ of an education clause to the exclusion of an equal protection claim,
but differed in concluding that, “[tjhere is no sound basis for holding the equal protection clause
inapplicable to the facts of this case. The constitutional mandate for a general, suitable, and
efficient education in no way precludes us from applying the equal protection clause to the
present financing system....”252 In contrast to Robinson the court referenced the state

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constitution’s education clause only to reinforce the decision that the equal protection clause
applies. The court did not go as far as to declare education a fundamental right or to distinguish a
suspect class, yet marking that even in this absence, “we can find no constitutional basis for the
present system, as it has no rational bearing on the education needs of the districts.”253 In
consideration of the state’s charge that the funding system contributed to the legitimate interest of
local control, the court observed, “to alter the state financing system to provide greater
equalization among districts does not in any way dictate that local control must be reduced.”254
The court also referenced with approval the reasoning of Serrano255 which marked significant
resource disparities as working against local control for less affluent districts. In a concurring
opinion, Justice Purtle urged the court to not only rule on the constitutionality of the financing
system but to suggest an alternative plan to the legislature.256
East Jackson Public Schools v. State, 348 N.W.2d 303 (Mich. Ct. App. 1984)
The Court of Appeals of Michigan affirmed a lower court’s ruling that the state’s school
financing system was constitutional despite the unequal funding per student among districts that
resulted. The court that the state constitutional mandate to “maintain and support a system of free
public elementary and secondary schools as defined by law”257 was not violated by a system that
provided for a degree of local autonomy in financing through the application of locally
determined ad valorem property taxes. Citing state court precedent,258 the court held that
education was not a fundamental right and that the education article was not synonymous with an
obligation to provide equal educational support. Therefore, the challenged funding system did not
present as a violation of equal protection. The court of appeals noted, “[t]here is no allegation that
any pupil has been or will be deprived of an opportunity for a free public education, or of an
adequate opportunity for education.”259 In addition, the case spoke to the standing of the school
districts involved. In a case brought by both plaintiff students and districts, the court determined
that the districts did not have standing, remarking that, “plaintiff districts do not seek to enforce

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rights conferred upon them but to overturn the legislative scheme of financing and to thus compel
the Legislature to enact a different system that would conform to plaintiffs theories of
equality.”260 The court ruled that as “creations of the state” the districts had no power to do so.
Horton v. Meskill, 486 A.2d 1099 (Conn. 1985)
On appeal and cross appeal, the Supreme Court of Connecticut ruled that the state system
of financing education enacted in 1979 subsequent to the court’s 1977 ruling in Horton v.
Meskill,261 was constitutional. Additionally, the court remanded for further proceedings the lower
court’s holding that subsequent amendments to the state’s plan were unconstitutional, citing the
application of an improper standard and the failure to afford all parties opportunity to be heard in
reference to the ramifications of a declaration of unconstitutionality. The plaintiffs had asserted
that the educational equity plan the General Assembly had enacted in 1979, composed primarily
of guaranteed tax base provision and minimum expenditure requirement was unconstitutional as
weighed in reference to the high court’s holding in Horton / that state assure for all students a
substantially equal educational opportunity. They further charged, and the supreme court acceded,
that legislative action following passage of the funding plan postponed full implementation. The
court was also consonant with plaintiffs charge that the system must be strictly scrutinized to
determine constitutionality, however reasoned that “the sui generic nature of litigation involving
school financing legislation militates against formalistic reliance on the usual standards of the law
of equal protection, in particular that the state must demonstrate a compelling state interest.”262
Instead, the court held that the legislation must be strictly scrutinized using a three-step process.
Detailing this application, the court wrote:
First, the plaintiffs must make a prima facie showing that the disparities in
educational expenditures are more than de minimis in that the disparities
continue to jeopardize the plaintiffs’ fundamental right to education. If they make
that showing, the burden then shifts to the state to justify these disparities as
incident to the advancement of a legitimate state policy. If the state’s justification
is acceptable, the state must further demonstrate that the continuing disparities
are nevertheless not so great as to be unconstitutional.2f?

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The supreme court determined, in concurrence with the lower court, that taken as a
whole, the legislation did significantly further the equalizing of state support to local education.
To trace the state of funding disparities, the opinion reproduced the lower court’s illustration of
statistical measures from 1973 through 1984, including the range of per pupil expenditures, the
restricted range of per pupil expenditures, and the state mean per pupil expenditures. In addition,
the ratio of districts at the 95th percentile to those at the 5th percentile, the ratio of the wealthiest to
poorest districts, the McLoone Index, and coefficient of variation, all measured in respect to per
pupil expenditures were cited.264 Aside from illustrating these indices, the court made comment in
reference to the decrease of the 95:5 ratio over the course of the ten year period265 and stated its
agreement with the lower court’s finding that the disparities had been significantly narrowed.
However, the court noted that the trial court relied upon the same statistical measures to
demonstrate the continued evidence of “significant disparities” in local educational expenditures
when it ruled that subsequent amendments to the legislation were unconstitutional as they delayed
implementation. The state supreme court counseled the lower court to reconsider its ruling, and
in doing so, apply the aforementioned three part test as opposed to determining if the statutes met
a compelling state interest.
Serrano v. Priest, 226 Cal. Rptr. 584 (Cal. Ct. App. 1986)
Plaintiffs in this action before the Court of Appeal of California charged that
unacceptable disparities still existed between school districts in moneys expended per pupil
despite the introduction of a new system of public school finance. Pursuant to Serrano v.
Priest267 the state, in restructuring its financing scheme, attempted to address the directive that:
Wealth-related disparities between school districts in per-pupil expenditures,
apart from the categorical aids specials needs programs, that are not designed to,
and will not reduce to insignificant differences, which mean amounts
considerably less than $100 per pupil, within a maximum period of six years
from the date of entry of this judgment.268

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The court of appeal denied the plaintiffs equal protection claim under the state’s
constitution, finding that per-pupil expenditures had been reduced to insignificant differences. In
the wake of Proposition 13,269 which severely curtailed the ability of locales to exact substantial
revenue from property taxes in addition to constraining the ability of the legislature to raise taxes
and restricting the ability of school local districts to introduce special levies, funding for
education under Bill No. 8270 fell in great measure upon the state. The statute introduced base
revenue limits per average daily attendance and distinguished between “high revenue” and “low
revenue” districts in determining the state’s contribution. In addition categorical grants were
provided, appropriated regardless of the wealth of the district. While remarking that the $100
standard was not a rule of law, the court did acknowledge that when adjusted for inflation 93.2
percent of the state’s school districts were within the $100 band. Given far greater weight were
equity measures introduced in the analysis of funding disparity and compliance with the Serrano
II mandate. Pointing out that “no single measure of disparity permits accurate and
comprehensive conclusions to be drawn about the equity of California’s school finance
system,”271 the court made use of the federal range ratio, relative mean deviation, McLoone’s
Index, variance, coefficient of variance, standard deviation, Gini Coefficient, Theil’s Measure and
Atkinson’s Index.272 Considering the results of these measures, the court concluded that the
California system of school finance had evidenced significant improvement over the preceding
eight years. In addressing the disparities which remained, the court considered them justified
given that they were not wealth related. Rather, the court ruled that they served to allow for an
orderly transition from the previous wealth based system to the state funded system in addition to
reflecting differences in educational needs and costs among school districts addressed through
categorical grants. The court did draw attention to the severe declines in purchasing power w'hich
the higher revenue school districts had experienced, detailing the reductions in teaching and
administrative staffs, educational programs and student services.273 In lights of these
developments, the court opined that any initiatives to further “leveling down” would produce far

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more harm than good. For the court, the state’s public school funding program presented as “the
most effective plan available...for coping with Proposition 13, the Serrano mandate, and a state
fiscal crisis.”274
Papasan v. Allain, 106 S.Ct. 2932 (U.S. 1986)
School officials and school children in 28 northern Mississippi counties brought suit in
federal court, charging that they were “being unlawfully denied the economic benefits of public
school lands granted by the United States to the State of Mississippi well over 100 years ago.”275
Federal school land grants in the early Nineteenth Century did not apply to these districts that
were held at that time by the Chickasaw Indian Nation. These Sixteenth Section and Lieu lands
had constituted lands held in trust for the benefit of public education.276 As proceeds from this
trust was confined to the districts in which the Sixteen Section or Lieu lands were located, the
state made provision for alternative funding for the plaintiffs school districts. Flowever, a
significant disparity in funding resulted, as the Court noted the substitute appropriation in 1984
was approximately $.68 per pupil, while the average Sixteen Section land in the rest of the state
produced $75.34 per student.277 In remanding the case, the Supreme Court ruled that the plaintiffs
charge that the funding disparities violated the Equal Protection Clause of the Fourteenth
Amendment was not barred by the Eleventh Amendment, and that it must be measured against a
rational relationship to a legitimate state interest. In considering the Eleventh Amendment
question, the court wrote that the fact that a state official, not the state or agency thereof, was
named a defendant, made the “status of the suit less straightforward.” It marked that, “an
unconstitutional state enactment is void and that any action by a state official that is purportedly
authorized by that enactment cannot be taken in an official capacity since the state authorization
for such action is a nullity.”278 The Court ruled that, “relief that serves directly to bring an end to
a present violation of federal law is not barred by the Eleventh Amendment....”279 Turning to the
equal protection claim of the plaintiffs that the state actions denied them their rights to an

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minimally adequate level of education, while assuring the same right to other school children in
Mississippi, the Supreme Court ruled that the lower court had incorrectly dismissed the claim. In
judgments which warrant the inclusion of this case in a chronological review of education finance
litigation, the court concurred with the district court’s reliance on Rodriquez in concluding that
the state’s financial system would be constitutional if it bore some rational relationship to a
legitimate state interest, however the court observed that, “this Court has not yet definitively
settled the question of whether a minimally adequate education is a fundamental right and
whether a statute alleged to discriminatorily infringing that right should be accorded heightened
equal protection review.”280 The court also noted that, “Rodriquez did not.. .purport to validate
all funding variations that might result from a State’s public funding decision. It held merely that
the variations that resulted from allowing local control over property tax funding of the public
schools were constitutionally permissible in that case.”281
That the plaintiffs were not challenging the overall organization of the Mississippi school
funding program, but rather the state’s distribution of funds unequally among districts compelled
the court to find that Rodriquez did not resolve the equal protection claim in favor of the state.
The high court, in an observation that distinguished the instant case, marked that in Rodriquez,
the “differential financing available to school districts was traceable to school district funds
available from local real estate taxation, not to a state decision to divide state resources unequally
among school districts.”282 The question remaining to be answered was “[gjiven that the State has
title to assets granted to it by the Federal Government for the use of the State’s schools, does the
Equal Protection Clause permit it to distribute the benefit of these assets unequally among the
school districts as it now does?”283
Britt v. North Carolina State Board of Education, 357 S.E,2d 432 (N.C. Ct. App. 1987)
In affirming a lower court ruling, the Court of Appeals of North Carolina found that the
state’s statutory system of financing pubic education was constitutional. While plaintiffs, school

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children and parents in Robeson County, did not allege discrimination on the part of the state, nor
that they were a suspect class, they argued that the state constitution’s articles addressing
education conferred upon them a fundamental right to equal educational opportunity.284 They
took issue with a financing program that provided state funding through a flat grant based on the
average number of pupils in attendance without regard to other factors affecting fiscal needs. In
addition, the responsibility for providing other educational resources and provisions fell to the
local districts. This reliance upon local tax bases in conjunction with the flat grant provision
produced significant disparities in educational programs and facilities. Plaintiffs also sought
injunction compelling consolidation of the five separate systems in the county into one
administrative unit, contending that, “the multiple school systems in Robeson County fragment
the student population to such an extent that educational programs available to some students in
the county are not available to other who are in a different school system.”285 The court noted that
given that the governing boards of units of local government were tasked with supporting public
education and expressly authorized to use generated revenues to supplement education programs,
the differences in local fiscal capacity precluded the possibility that exactly equal educational
opportunities could be offered throughout the state. Further, the court opined that the requirement
to provide a “general and uniform system” of schools did not necessitate identical opportunities.
Addressing the mandate to provide equal opportunities, the court referenced the historical record
in concluding:
By mandating equal opportunities for all students, the framers of the Constitution
and the voters that adopted it were emphasizing that the days of “separate but
equal” education in North Carolina were over, and that the people of the State
were committed to providing all students with equal access to full participation in
our public schools, regardless of race or other classification.286
Thus the fundamental right in question was the right to equal access to education. The
court of appeals marked the plaintiffs’ assertion that they did not seek absolute equality from
system to system, however remarked that, “if our Constitution demands that each child receive

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equality of opportunity in the sense argued by the plaintiffs, only absolute equality between all
systems across the State will satisfy the constitutional mandate.”287 For the court:
The fundamental right, that is guaranteed by our Constitution...is to equal access
to our public schools—that is, every child has a fundamental right to receive an
education in our public schools...The State is required to provide a general and
uniform education for the students in its charge. “There is no requirement that it
provide identical opportunities to each and every student.”288
The court concluded, “since no constitutional infirmity appears from the complaint, the only
questions which it raises relate to the wisdom of the Legislature in providing for the present
method of funding public education... These are matters of purely legislative concern.”289
Fair School Finance Council for Oklahoma, Inc. v. State, 746 P.2d 1135 (Okla. 1987)
The Supreme Court of Oklahoma affirmed a district court’s ruling that the state’s system
for financing public education did not violate the Equal Protection Clause of the United States
Constitution nor was it in violation of the Oklahoma Constitution.290 Plaintiffs291 had argued that
the state aid program, which consisted of foundational and incentive components, in addition to a
flat grant, failed to provide equal educational opportunities for all children of the state. They
contended that the reliance on ad valorem taxes, limits on indebtedness based on district wealth,
and the local tax option conspired to create significant funding disparities. To illustrate said
disparities, plaintiffs noted, and the court acknowledged the state mean of assessed value per
pupil in comparison to the assessed value per pupil of the plaintiff school districts.29" These
districts, due to variances in value, could not raise as much revenue per pupil, despite applying
the maximum levy, as wealthier school districts could despite applying lower rates. Plaintiffs also
charged that the inconsistent nature of property assessment throughout the state and the different
methods of classification rendered the valuation of property, the basis of the ad valorem system,
unconstitutionally discriminatory.
Considering the constitutional argument, the court observed that the plaintiffs had not
defined “equal educational opportunity.” Given that they alleged that this opportunity, however

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defined, was materially inferior to that of wealthier school districts, court concluded that “by
‘equal educational opportunities,’ the plaintiffs mean equal revenues”293 per pupil. In considering
the Oklahoma Constitution, the court found within the mandate to establish and maintain a
system of free public schools no call for equal expenditures per pupil. The court marked that the
right guaranteed was “[a] basic, adequate education according to the standards that may be
established by the State Board of Education.”29* In reference to a federal equal protection claim,
the court referenced Rodriquez, citing the absence of a fundamental right and suspect class in
rejecting the claim. Plaintiffs marked, and the court acknowledged, the differences between the
system in Texas at question in Rodriquez and that of Oklahoma; specifically the limits imposed
upon amount of ad valorem tax which may be levied for general operating fund and yearly
indebtedness ceilings in Oklahoma. However, the ruling found such limits to be “reasonable and
proper” and in no way unconstitutional, particularly in such a manner as to raise an equal
protection claim. As to a state equal protection demand, the court declined to apply the Rodriquez
test,295 noting that the “Oklahoma Constitution addressed not only those areas deemed
fundamental but also others which could have been left to statutory enactment.”296 The opinion
dismissed the argument that because education was mentioned in the constitution, it was a
fundamental right and therefore subject to strict judicial scrutiny. The supreme court observed
that “The plaintiffs do not allege that they or their children are completely denied an education.
Nor do they allege that the education they are able to provide or receive is in any way an
inadequate one.”291 For the court, failure to demonstrate that the state had acted arbitrarily or
capriciously, or that it had not met the court’s reading of a constitutional mandate to provide
access to an adequate education, rendered the plaintiffs argument unpersuasive.

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Livingston v. Louisiana State Board of Elementary and Secondary Education, 830 F.2d 563
(5lh Cir. 1987)
Plaintiffs from the Livingston and Grant Parish School Boards had brought suit in federal
court, attacking the Louisiana system of financing public education claiming that it violated the
Equal Protection Clause of the Fourteenth Amendment. The Fifth Circuit of the United States
Court of Appeals affirmed the ruling of the United States District Court for the Middle District of
Louisiana which held that the system employed by the state based on the current assessed value
of taxable property within a district did not violate the plaintiffs’ right to equal protection. The
plaintiffs had charged that the state’s Minimum Foundation Program (MFP),298 which was
calculated primarily on a per capita basis as opposed to actual educational need and the local
revenue generated with a prescribed ad valorem levy had an “arbitrary, rather than [an] equalizing
effect.”299 Further, the disbursement of funds to compensate districts for homestead exemptions
discriminated against school districts with a large percentage of property subject to the
exemption, in conjunction with the local option to apply an additional levy for education, resulted
in disparities in the amount of revenues available to parishes to fund education. The Circuit Court
chose to analyze these funding disparities under the rational basis standard. Plaintiffs had sought
review under heightened scrutiny, however the court noted:
[T]he record contains no evidence whatever that any Louisiana schoolchild was
deprived of a minimally adequate education because of insufficient funds.
Consequently, the classifications challenged in this case are not entitled to any
heightened scrutiny under the equal protection clause based upon any theory—
the abstract validity of which we do not address—either of wealth being a
suspect classification or of education being a fundamental right.300
The federal court held that the plaintiffs had failed to meet their burden of proving the
state had no constitutionally valid purpose for the development of its financing system nor could
it conclude that its application was not rationally related to such a purpose. The Circuit Court
considered the plaintiffs’ demonstration of the range of per pupil educational expenditures from
the highest district, Cameron Parish, to the lowest, Livingston Parish. The court observed, first,

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that under the MFP, the state contributed a far greater percentage of the cost per student in the
poorer district. ’01 Secondly, the court observed that Cameron Parish was a statistical anomaly due
to its income from sixteenth section lands and therefore made note of the next two highest school
districts, an application that significantly reduced the range.30" The court also noted the average
all-source total educational expenditures per student of the seven wealthiest parishes and the
range from the expenditures evidenced in the seven poorest parishes, a measure which was also
calculated eliminating the anomalous Cameron Parish. Calculating the relative disparity of these
values to be 1,7-to-l with Cameron, and 1,5-to-l without, the court observed that these disparities
were less than that marked in the constitutional Texas system in Rodriquez,303 The court observed
that despite disparities resulting from differences in interdistrict assets, “the formula is not
without some substantial equalizing effect.”304 The opinion affirmed the district court’s
observation that:
Louisiana’s MFP reflected two competing legitimate state goals, that of assuring
each child in the state an opportunity for a basic education on an equal basis and
of permitting and maintaining some measure of local autonomy over public
education...The program provides basic educational requirements on an equal
basis throughout the state by allocating funds on the basis of student
membership; yet by not canceling out all disparities in local revenues available
for school support, the program also gives local school districts encouragement
and flexibility to supplement state funds.305
The Fifth Circuit opined that, “as long as the state’s means of achieving its objective is not so
irrational as to be invidiously discriminatory, the financing scheme does not fail merely because
other methods of serving these goals exist that would result in smaller interdistrict disparities in
school support expenditures.”306
Richland County v. Campbell, 364 S.E.2d 470 (S.C. 1988)
307
Under South Carolina’s Education Finance Act and the Education Improvement Act,
public education was funded through formulae that provided for shared funding of a minimum
program by state and local school districts. A state circuit court ruled, and the Supreme Court of

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South Carolina affirmed in this case, that the financing scheme was not violative of the state’s
constitutional mandate to provide for maintenance and support a system of free public schools308
nor its equal protection provisions. The appellants had contended that the shared funding of
education had produced disparate revenues and unequal educational opportunities. The supreme
court proposed that the appellants had interpreted the educational article, “as requiring the
legislature to ‘pay’ for the cost of the public school system rather than ‘provide’ for its
maintenance and support.’^09 The opinion did not address funding disparities, rather determined
that the constitution provided the General Assembly generally unrestricted powers to provide for
public education. According to the court, “the framers of the Constitution have left the legislature
free to choose the means of funding the schools of this state to meet modem needs.”310 In
considering an equal protection claim, the state Supreme Court distinguished the case from
Robinson311 and Serrano312 cited by the plaintiffs, noting that in South Carolina, “school districts
which lack a sufficient tax base receive proportionally more state funds and are required to pay
proportionally less local revenue for pubic school operation.”313
Kirby v. Edgewood Independent School District, 761 S.W.2d 859 (Tex. App 1988)
Appellees had secured declaration from a state district court that the Texas school
financing system was in violation of the Texas Constitution. The Court of Appeals of Texas,
Third District reversed that judgment. Article VII, Sec. 1 of the Texas Constitution read: “A
general diffusion of knowledge being essential to the preservation of the liberties and rights of the
people, it shall be the duty of the Legislature of the State to establish and make suitable provision
for the support and maintenance of an efficient system of public free schools.”314 Appellees’
argument, embraced by the district court was this explicit reference rendered education a
fundamental right. The district court also distinguished the appellees as a suspect class, thus for
purposes of equal protection analysis under the Texas Constitution, applied the strict scrutiny
standard. Such application found want of a compelling interest on behalf of the state for the

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maintenance of the funding system in question hence statute was in violation of state’s equal
protection demand.31S The lower court also concluded that the school system as constituted was
“inefficient,” and failed to provide an adequate educational opportunity. The court of appeals
observed that, “[t]he district court defined an “adequate education opportunity” as the “education
program available to...the 600,000 students in the state’s wealthiest school districts.” The district
court apparently concluded that the Texas Constitution guarantees this type of educational
opportunity to each child.”316
The court, failing to find cause to conclude that the Texas education system failed to
provide each child with a basic education, in addition noted that:
[The constitution did] require that the school system be “efficient” but the
provision provides no guidance as to how this or any other court may arrive at a
determination of what is efficient or inefficient. Given the enormous complexity
of a school system educating three million children, this Court concludes that
which is, or is not “efficient” is essentially a political question not suitable for
judicial review.317
In addressing education as a fundamental right, the appeals court marked that the district
court has misapplied the Rodriquez standard in relying upon an explicit or implicit constitutional
guaranteed, for “[ujnlike the United States Constitution, which is a document delegating limited
authority and power, the Texas Constitution addresses a great number of subjects, the large
majority of which are not fundamental rights.”318 The court reasoned “that education, although
vital, does not rise to the same level as the right to engage in freedom of speech or to exercise
religion free of governmental interference, both rights which have long been recognized as
fundamental and entitled to protection under both the federal and state constitutions.”319 Citing
the standard enunciated in Rodriquez, the court of appeals ruled that the appellees did not present
with any of the traditional indicia of suspectedness and therefore concluded “the Texas system
does not operate to the peculiar disadvantage of any suspect class.”320 Taking into consideration
the development of the state’s education system and the drafting of the constitution, the court
determined “the people intended to set up a school system retaining a significant degree of local

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control. The scheme of local financing that evolved is not wholly irrelevant to the goal of local
control.’'j2' The court concluded its ruling, observing:
The system does not provide an ideal education for all students nor a completely
fair distribution of tax benefits and burdens among all of the school patrons.
Nevertheless, under our system of government, efforts to achieve those ideals
come from the people through constitutional amendment and legislative
enactments and not through judgments of courts.322
In dissent, Justice Gammage, pointed to findings of fact that were not articulated by the
majority. In the opinion, note was made of the range of property wealth per student and
expenditures per pupil.323 Citing these disparities, in conjunction with a reading that did consider
education as a fundamental right under the Texas Constitution, and a validation of the suspect
class claim based upon the demographics of the appellee districts, the dissent found sufficient
reason to affirm the trial the district court’s ruling.
Helena Elementary School District No. 1 v. State, 769 P.2d 684 (Mont. 1989)
Plaintiff school districts brought suit charging that the state of Montana’s system of
funding public education violated Article X of the 1972 state constitution.324 A state district court
ruled, and the Supreme Court of Montana affirmed, that indeed the system was unconstitutional.
Focusing solely on the education article to the exclusion of an equal protection analysis, the
supreme court cited evidence presented to the trial court that demonstrated significant disparities
in per pupil expenditures that reflected the differences in local wealth, the basis of the district
contribution to education revenues.325 The court noted testimony presented in the district court
that evidenced the substantial differences in educational opportunities among Montana’s school
districts that were manifested between high versus low spending categories. The opinion did not
explicitly document statistical indices of disparities, rather pointed to presence of computers,
availability of special programs, extracurricular activities, and curricular offerings as measures of
educational opportunity.326 In consideration of these illustrations, the opinion determined that,
“[tjhe evidence presented at the trial of this case clearly and unequivocally establishes large

206
differences, unrelated to ‘educationally relevant factors,’ in per pupil spending among the various
school districts in Montana.” 327 The ruling did mark that, “[wjhile this opinion discusses
spending disparities so far as pupils are concerned, we do not suggest that financial
considerations...are the sole elements of a quality education or of equal educational
opportunity.”328 The court remarked that it had been suggested that it “should spell out the
percentages which are required on the part of the State under the Foundation Program and for the
districts under the voted levy system,”329 but determined, “[w]e are not able to reach that type of
conclusion... [t]he control of such is primarily in the Legislature.”330 The state had argued that the
guarantee of equal opportunity was an aspirational goal; however the court found it to be a clear
and unambiguous obligation. The supreme court opined that the guarantee did not just stop with
the state’s equal disbursal of funds, but concluded, “the guarantee of equality of educational
opportunity applies to each person of the State of Montana, and is binding upon all branches of
government whether at the state, local, or school district level.”331 Further, the state had
contended that the constitutional directive that the supervision and control of schools in each
school district be vested in a board of trustees countenanced a degree of spending disparities. The
justices of the state’s high court found the local control argument unpersuasive, failing to find a
constitutional reference to spending differences in conjunction with trustee control. It further
dismissed an additional local control justification, citing the district court’s finding that, “the
present system of funding may be said to deny to poorer school districts to a significant level of
local control, because they have fewer options due to fewer resources.”332 Confining its holding
to an application of the state’s education article, the court did not rule on the district court’s
holding that education w-as a fundamental right, but did address the standards issue. In reference
to the accreditation standards employed by the Board of Public Education, it amended findings of
fact to read, “The testimony of superintendents, teachers, and trustees clearly establishes that
from the professional educators’ perspective, the minimum accreditation standards do not fully
define a quality education.’”33 Failing to do so evidenced that the state had not fully defined the

207
constitutional rights of students nor its constitutional responsibilities for funding public
education. The court also held that the state could not factor in the funds it received from the
federal government for Native American education (“874” funding)'34 when determining funding
equity. It would be permitted to do so only at such time the entire state system met the federal
definition of an equalized program.3j5 The court stayed the holdings of the case “in order to
provide the Legislature with the opportunity to search for and present an equitable system of
school financing.”336
Kukor v. Grover, 436 N.W.2d 568 (Wis. 1989)
Appellants had challenged the state constitutionality of the statutory school finance
system, first asserting that it failed to meet the requirement of legislative establishment of school
districts “which shall be as uniform as possible,”3j7 and secondly that it was in violation of state
equal protection provisions. Circuit court had found the state aid formula to be constitutional and
the Supreme Court of Wisconsin affirmed in this case. State employed a guaranteed tax base to
address cited per pupil valuations ranging from $77,927 to $989,561 in districts offering
kindergarten through 12th grades.338 Appellants maintained that the system was constitutionally
deficient in that it failed to account for differing educational needs, particularly those arising from
‘educational overburden’ and ‘municipal overburden.’ In light of these factors, it was argued that
affected districts required greater financial resources to achieve the same level of educational
opportunity. The supreme court accepted lower court findings, among them that significant
disparities in operating expenditures existed among Wisconsin school districts; districts with high
concentrations of poverty students faced extraordinary educational overburden in areas of
compensatory education, supportive services, drop-out prevention, and vocational education; and
that non-school financial burdens make it difficult for urban areas to increase property taxes for
education and that the cost of education in those districts is higher due to “high salary costs,
security and vandalism costs, and high costs due to the operation of school in old structures.”339

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in entertaining the “uniformity” provision of the state constitution, the court first held that the
statutory system exceeded the constitutional dictate that state funds be disbursed equally in that a
greater amount of state funds per pupil were distributed to districts with lower equalized
valuations. Acknowledging the consensus that greater uniformity in educational opportunity is
“desirable and necessary” the court held that the uniformity provision spoke to the “character” of
instruction, which was constitutionally compelled to be uniform and determined legislatively.340
In light of the statutorily mandated school district standards, the court ruled that the school
finance system did not infringe upon the uniformity requirements of the state constitution.
In consideration of the equal protection claim, court cited the appellants’ premise that the
financial system fails to treat equally situated students equally to the extent that educational
opportunity was in large measure determined by place of residence. Declining to make assertion
that they were a suspect class, appellants did contend that education was a fundamental right and
thus subject to a strict scrutiny standard, the application of which they maintained would find the
system constitutionally deficient. The court agreed with the appellants that equal opportunity for
education was a fundamental right. However, that did not necessitate absolute equality of
districts’ per pupil expenditures.341 The opinion reasoned:
[Sjince the deficiency allegedly exists not in the denial of a right to attend a
public school free of charge, nor in the less affluent districts’ failure to meet
educational standards...nor in the state’s failure to distribute state resources to
the less affluent districts on at least an equal per pupil basis as distribution is
made to wealthier districts, no fundamental right is implicated in the challenged
spending disparity.342
The court held that, as in Rodriquez, the rational relationship standard was appropriate
because the issue before the court was spending disparities, not an absolute denial of educational
opportunity. Citing the state constitution and Wisconsin State Supreme Court precedent,343 the
court found that the funding system had a rational basis in the preservation of local control of
education. The opinion also observed that to the extent that funding disparities may present under
the state equalization aid formula, differences are the result of decisions made at the local level,

209
“a variation whose legitimacy is grounded in the constitutional requirement that control be
retained by the localities.”344 The majority opinion concluded that:
What has been challenged in this case at bar is not that less affluent schools have
insufficient funds to provide for basic education, but that they have inadequate
funds to provide specialized programs and to meet the particularized needs of
students related to the effects of poverty. We recognize that more and improved
programs are needed in the less affluent or overburdened districts but find that
these legitimate demands may not be correctly described as claims for uniformity
under Wis. Const, art. X, sec. 3 or equal treatment...but rather constitute
demands for that amount of resources necessary to meet the additional
costs...Such demands cannot be remedied by claims of constitutional
discrepancies, but rather must be made to the legislature and, perhaps, also to the
345
community.
Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky. 1989)
A nonprofit corporation comprised of local school districts and public school students
brought suit charging that Kentucky’s common school fund was unconstitutional and
discriminatory. A state circuit court held, and the Supreme Court of Kentucky affirmed, that the
system which the General Assembly had created failed to produce an efficient system of common
schools as required by the state constitution.346 The complaint had alleged that the system of
school financing was too dependent on local resources and thus resulted in “inadequacies,
inequities, and inequalities throughout the state so as to result in an inefficient system of common
school education in violation of Kentucky Constitution, Sections 1, 3, and 183 and the equal
protection clause and the due process of law clause of the Fourteenth Amendment to the United
States Constitution.”347 The General Assembly had enacted a Minimum Foundation Program
which disbursed funds based on classroom units and a Power Equalization Program which was
designed to equalize, to some degree, the disparities in local financial effort. Further legislation
enabled local school districts to levy additional specialized permissive taxes. The court concluded
that despite the equalization effort significant disparities existed. Absent the citation of any
specific statistical evidence, the court observed, “[t]he disparity in per pupil expenditures by the
local school boards runs in the thousands of dollars per year. Moreover, between the extreme high

210
allocation and low allocation lies a wide range of annua! per pupil expenditures.”5118 The court
concluded that the discretionary tax program contributed to the disparity in that, ‘"'those counties
with a high population and high payrolls would produce many times more revenue than counties
(districts) not so blessed.”349 In gauging the “efficiency” of the Kentucky public schools, the
supreme court reasoned that:
The overall effect of appellants’ evidence is a virtual concession that Kentucky’s
system of common schools is underfunded and inadequate; is fraught with
inequalities and inequities throughout the 177 local school districts; is ranked
nationally in the lower 20-25% in virtually every category that is used to evaluate
educational performance; and is not uniform among the districts in educational
opportunities.350
The court also noted comparisons to neighboring states, the number of high school
dropouts, and the dire financial straits of districts to illustrate the poor condition of education in
Kentucky. It observed that “The tidal wave of appellees’ evidence literally engulfs that of the
appellants.”351 In finding that the Council and the local school districts had the legal authority to
sue, the court opined, “a lawsuit to declare an educational system unconstitutional falls within the
authority, if not the duty, of local school boards to fulfill their statutory responsibilities....”352
Focusing on Section 183353 of the state constitution, the court embarked upon an exploration of
what “efficiency” entailed. The court detailed the minimal characteristics of an efficient system of
common schools to include that:
1. The establishment, maintenance, and funding of common schools in
Kentucky is the sole responsibility of the General Assembly.
2. Common schools shall be free to all.
3. Common schools shall be available to all Kentucky children.
4. Common schools shall be substantially uniform throughout the state.
5. Common schools shall provide equal educational opportunity to all Kentucky
children, regardless of place of residence or economic circumstance.
6. Common schools shall be monitored by the General Assembly to assure that
they are operated with no waste, no duplication, no mismanagement, and
with no political influence.
7. The premise for the existence of common schools is that ail children in
Kentucky have a constitutional right to an adequate education.
8. The General Assembly shall provide funding which is sufficient to provide
each child in Kentucky an adequate education.
9. An adequate education is on which has its goal the development of the seven
capacities recited previously.354

The state supreme court, in its consideration of “efficiency” and the provision of an
“adequate” education, reproduced in the opinion the trial court’s delineation of capacities said
system should provide students. The court identified:
(i) sufficient oral and written communications skills to enable students to
function in a complex and rapidly changing civilization; (ii) sufficient knowledge
of economic, social, and political systems to enable the student to make informed
choices; (iii) sufficient understanding of governmental processes to enable the
student to understand the issues that affect his or her community, state, and
nation; (iv) sufficient self-knowledge; (v) sufficient grounding in the arts to
enable each student to appreciate his or her cultural and historical heritage; (vi)
sufficient training or preparation for advanced training in either academic or
vocational fields so as to enable each child to choose and pursue life work
intelligently; and (vii) sufficient levels of academic or vocational skills to enable
public school students to compete favorably with their counterparts in
surrounding states, in academics or in the job market.355
Applying this exhaustive definition and having recognized that education is a
fundamental right in Kentucky, the court observed that, “In spite of the past and present efforts of
the General Assembly, Kentucky’s present system of common schools falls short of the mark of
the constitutional mandate of‘efficient.’”356 The court directed the General Assembly “to recreate
and redesign a new system”357 that would be adequately funded, substantially uniform throughout
the state, and would provide every child with an equal opportunity to have an adequate education.
In marking that it had considered the case solely on the basis of the Kentucky Constitution, the
court declined to address any issues raised under the United States Constitution. Entertaining the
appellants’ assertion that the trial court had violated the separation of powers doctrine,
characterizing its ruling as ‘dictating’ to the General Assembly, the supreme court agreed that the
trial court had erred in retaining jurisdiction and directing the appellants to report to the court on
their progress, marking the order “a clear incursion, by the judiciary, of the functions of the
legislature.”^58 The opinion noted, “our job is to determine the constitutional validity of the
system of common schools within the meaning of the Kentucky Constitution... [i]t is now up to
the General Assembly to re-create, and re-establish a system of common schools within this state

21
which will be in compliance with the Constitution.”359 The court left no doubt as to the breadth
of its ruling, writing:
This decision applies to the entire sweep of the system—all its parts and parcels.
This decision applies to the statutes creating, implementing and financing the
system and to all regulations, etc., pertaining thereto. This decision covers the
creation of local school districts, school boards, and the Kentucky Department of
Education to the Minimum Foundation Program and Power Equalizing Program.
It covers school construction and maintenance, teacher certification—the whole
gamut of the common school system in Kentucky.360
The dissenting opinions made particular note of a judicial interference with legislative
prerogative. Justice Vance noted:
There is now imposed a requirement that the system be adequately funded, but no
specific standards have been established to determine the adequacy of
funding...How will the General Assembly be able to know [referencing the
seven capabilities identified in the majority opinion] if the legislation it enacts
will provide each and every student throughout the Commonwealth with a
sufficient grounding in the arts to appreciate his cultural or historical heritage?
This goal, like the other seven, is so vague that regardless of what legislation is
enacted by the General Assembly the door has been open for another group or
groups of students to sue the General Assembly ad infinitum... I fear it will be the
courts rather than the General Assembly which will end up monitoring the
common school system.361
Justice Leibson, opining that the case should be dismissed and reversed given that it did
not present an actual or justiciable controversy, cautioned that:
A judicial pronouncement in the present case where there are public questions of
the utmost importance but no such justiciable controversy will cause more
problems than it will solve...it opens the doors of the courthouse to a host of new
litigants seeking a forum to argue questions of public policy which are incapable
of specific judicial resolution... we can expect this case to be cited as precedent in
a new wave of litigation involving issues that should be debated in the forum of
public opinion, and then legislated rather than litigated.362
Edgewood Independent School District v. Kirby, 111 S.W.2d 391 (Tex. 1989)
The Supreme Court of Texas reversed judgment of state Court of Appeals, Third
District,363 and affirmed trial court ruling that the Texas school financing scheme violated the
state constitutional provision requiring establishment and support of “efficient” system of public
education in order to achieve a “general diffusion of knowledge.”364 The supreme court gave

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exhaustive treatment to statistical indices of disparities noted by the trial court including the range
of property wealth per student and expenditures per student, the ratio of the average property
wealth in the 100 wealthiest school districts to the 100 poorest school districts, and comparison of
the percentage of the state’s wealth available to support the 300,000 students in the lowest wealth
schools to the 300,000 students in the wealthiest schools. Court also cited issue of taxpayer
equity, marking the higher rates poor districts levy which still produce yields significantly short
of wealthier districts which apply lower rates.365 These statistics, in combination with a
consideration of quality of the educational programs in low wealth districts, compelled the
supreme court to conclude that “[property poor districts are trapped in a cycle of poverty from
which there is no opportunity to free themselves. Because of their inadequate tax base, they must
tax at significantly higher rates in order to meet minimum requirements for accreditation; yet their
educational programs are typically inferior.”366 Whereas the court of appeals had deemed the
consideration of “efficient” in reference to the public school system as a matter properly left to
the legislature and electorate, me state’s high court held that although the wording of Article VII,
Section l,367 was not precise, it did provide “a standard by which this court must, when called
upon to do so, measure the constitutionality of the legislature’s actions;”368 this in concert with
the finding that the matter “is not an area in which the Constitution vests exclusive discretion in
the legislature.. ,.”369 In a reading of the development of the state’s constitution, the court opined
that the framers, “stated clearly that the purpose of an efficient system was to provide for a
‘general diffusion of knowledge.’”370 Contrary to that mandate, the court found that the state’s
current system “provides not for a diffusion that is general, but for one that is limited and
unbalanced. The resultant inequalities are thus directly contrary for the constitutional vision of
efficiency.”371 The court drew attention to the state’s Education Code,377 citing that “ a thorough
and efficient system be provided.. .so that each student.. .shall have access to programs and
services...that are substantially equal to those available to any similar student, notwithstanding
varying economic factors.”373 While acknowledging that efficiency did not require an equal per

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capita distribution, the opinion held that it did not countenance a system in which concentrations
of resources existed alongside property poor districts which could not support minimum
standards. The court ruled that “[c]hildren who live in poor districts and children who live in rich
districts must be afforded substantially equal opportunity to have access to educational funds.”374
Given the clear constitutional violation the system presented referenced against the Texas
Constitution's ‘efficiency’ provision, the court did not deem it necessary to consider the other
constitutional arguments offered by the petitioners.375 Concluding that the legislature must take
“immediate action,” the ruling modified the trial court’s judgment and stayed the effect of its
injunction until May of 1990.376
Abbott v. Burke, 575 A.2d 359 (N.J. 1990)
The Supreme Court of New Jersey revisited the issue of the constitutionality of the state’s
Public Education Act which it had first entertained in Abbott v. Burke, 495 A. 2d 3 76.377 The
court at that time had ruled that the question was properly addressed before that state’s education
administrative agency rather than the courts. The plaintiffs, school children from Camden, East
Orange, Jersey City, and Irvington, had brought action seeking judgment that the financial
provisions of the state’s statutory system of funding elementary and secondary education violated
the state’s constitutional mandate to provide a thorough and efficient education.378 Reviewing the
legislation at the direction of the court, the New Jersey Commissioner of Education found the
system constitutional, declining to accept an appointed administrative law judge’s
recommendation. The judge, noting substantial disparities in educational inputs found the system
wanting in that, in his estimation, ‘thorough and efficient’ had the implicit requirement of
substantial equality of educational opportunity throughout the state.379 After the New Jersey
Board of Education accepted the Commissioner’s findings, the plaintiffs appealed, which the
supreme court certified directly. Declining to find the system deficient in toto, the court did

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conclude that the Public Education Act was unconstitutional as applied to poorer urban school
districts. The court held that:
[T]he Act must be amended to assure funding of education in poorer urban
districts at the level of property-rich districts; that such funding cannot be
allowed to depend on the ability of local school districts to tax; that such funding
must be guaranteed and mandated by the State; and that the level of funding must
also be adequate to provide for the special education needs of these poorer urban
districts in order to redress their extreme disadvantages.380
In 1976 the court had ruled that the newly enacted Act was facially constitutional in
Robinson V.3S] The instant case introduced the consideration of its constitutionality as applied.
The court rejected the state’s argument that the actual substantive education provided to the
students in the poorest districts was thorough and efficient, or subject to ready correction. The
state drew attention to the implementation the “effective schools” program, which the court
acknowledged had demonstrated positive results. However, the opinion observed that:
[N]o matter how promising “effective schools” may be, the proofs fall short of
any showing that at present expenditure levels they will lead to a thorough and
efficient education in poorer urban districts. Furthermore, we find nothing in the
record, nor did the Commissioner attempt to prove, that even with
implementation of “effective schools,” educational disparity will not remain.382
Further, the court wrote, “we reject the State’s claim that in these poorer urban districts a
thorough and efficient education has been or will be achieved. The extent of failure is so deep, its
causes so embedded in the present system, as to persuade us that there is no likelihood of
achieving a decent education tomorrow, in the reasonable future, or ever.”383
In illuminating the disparities referenced, the court made significant use of statistical
indices of equity. First, the court referenced testimony that the restricted range of expenditures
per pupil had actually increased over the course of the Act’s implementation, a significant
disparity that remained when figures were adjusted for inflation. Testimony was also noted the
range of expenditures between the richest school districts as categorized by the state in its District
Factor Groups (based on measures of socio-economic status) and the poorest school districts. The
plaintiffs also offered statistical evidence constructed upon the grouping of students in all districts

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into septiles according to expenditures per pupil in one instance and equalized valuation per pupil
the other. Both sets of groupings correlated the rankings with corresponding variables, of which
the court noted percentage of minorities and the school tax rate. The information provided was
similar to that found in a corresponding comparison constructed upon the state’s DFG categories.
Comparison within each grouping standard was made to the state’s average of the examined
variable.384 Court remarked that although “each tells a different story, they add up essentially to
the same conclusion; the poorer the district and the greater its need, the less the money available,
and the worse the education.”385 Additionally, the court observed that:
Although the statistical relationships are the subject of considerable dispute, we
conclude that generally they show that the poorer districts—measured by
equalized valuation per pupil, or other indicators of poverty—the less the per
pupil expenditure; the poorer and more urban the district, the heavier the
municipal property tax, the greater the school tax burden; whatever the measure
of disadvantage, need, and poverty—the greater it is, the less there is to spend.386
Critical to its decision, however, the court observed that disparities were not as severe
absenting the extremes. Yet, while acknowledging the tenuousness of a causal connection in
consideration of the extremes and other measures of educational input it concluded that “the
strength and consistency of the relationship between dollars per pupil and these other factors
convince us that there is such a causal relationship, although that conclusion is not essential to our
determination.”387 The deference the court did accord to documented financial disparities was
illustrated in its explanation that:
[Expenditure disparity does play a role, an important one, in our conclusion that
the constitutional level has not been achieved in the poorer urban districts. This
disparity has multiple relevance: to the extent educational quality is deemed
related to dollar expenditures, it tends to prove inadequate quality of education in
the poorer districts, unless we were to assume that the substantial differential in
expenditures is attributable to an education in the richer districts far beyond
anything that thorough and efficient demands....388
The court acknowledged the state’s demonstration that the significant disparities noted existed
only when the comparison of the extremes was made, finding that “[f]or most districts plaintiffs
have been unable to prove substantively that a thorough and efficient education does not exist.”389

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However, referencing the 29 poorest districts the opinion had highlighted, the court marked that
the deprivation was real and of constitutional magnitude and “not blunted in the least by the
State’s statistical analysis.”390 The court did note that in Robinson Im it dealt with the issue of
the constitutionality of the funding scheme solely in terms of dollar input given the absence of
other viable criteria for measuring compliance. However, given that the Act defined the
constitutional obligation and provided for its implementation and monitoring, the court moved
beyond mere consideration of financial disparities in order to gauge the provision of “that
educational opportunity which is needed in the contemporary setting to equip a child for his role
as a citizen and a competitor in the labor market,” a requirement of a thorough and efficient
education it had identified in Robinson I. Distinguishing this case, the court stated:
The proof of substantive educational content has several sources. The Act itself,
the rules and regulations of the board and the Commissioner, the Commissioner’s
implementing actions, and the evidence of the education that actually takes place
in the district—through curriculum plans, course offerings, studies, reports,
valuations, and observations. The proofs differentiate this case from Robinson
jZ92
In an extensive treatment of educational inputs and metropolitan overburden the court did
distinguish educational disparities beyond financing, acknowledging that “our remedy here may
fail to achieve the constitutional object, that no amount of money may be able to erase the impact
of the socioeconomic factors that define and cause these pupils disadvantages.”3^ Yet, the
opinion returned to that standard, stating:
Disparity of funding is relevant to our constitutional conclusion...That disparity
strongly supports and is a necessary element of our conclusion that education
provided these students from poorer urban districts will not enable them to
compete with their suburban colleagues or to function effectively as citizens in
the same society.
Therefore, while not requiring the state to completely overhaul its entire system, the court
ruled that the Public Education Act must be remedied to assure that the poorest districts, the
identification of which was left to the legislature, must be provided a budget that was
“approximately equal to the average of the richer suburban districts.”395 The court tasked the

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legislature with implementing a remedy in accord with its finding, yet while declining to
prescribe a specific funding mechanism, directed that the legislature have an appropriate
financing scheme effective by the school year 1991 -92.396
Coalition for Equitable School Funding, Inc. v. State, 811 P.2d 116 (Or. 1991)
Plaintiffs397 sought a declaration that Oregon’s system of financing education violated the
constitutional mandate to “provide by law for the establishment of a uniform, and general system
of Common schools.”398 They maintained that the scheme failed to provide districts with the
funds necessary to comply with state education standards, such a graduation rates, drug and AIDS
education, and teacher salaries. In light of legislation which limited the levy on property taxes,
plaintiffs argued that the statute’s provision that voters in school districts could affect revenues by
controlling the tax base was insufficient to address disparities, illustrated by the range of assessed
valuation per pupil and expenditures per pupil.399 In holding that the plaintiffs had failed to
present a valid claim, the supreme court reasoned that the discretion accorded local taxpayers in
the matter of revenues for schooling in the constitution, countenanced disparities in financial
resources. The opinion referenced the constitutional provision400 which allowed school districts to
levy property taxes for operating purposes without additional voter approval, holding that it was
not incumbent on the state to appropriate additional funds to the districts in question given that
“[t]he Safety Net ...permits district-to-district disparities in taxation and level of pupil
funding.”401 They found nothing in the constitution that prohibited “disparities from one school
district to another, with respect to either financial benefits or tax burdens.”402 The court did not
make comment in reference to the range in assessed valuations per pupil or expenditures per pupil
noted by the plaintiffs, but reiterated the sentiments it expressed in Olsen v. Stated that although
the system may not be “politically or educationally desirable,” the court’s role was restricted to a
determination of its constitutionality.

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Tennessee Small School Systems v. McWherter, 851 S.W.2d 139 (Tenn. 1993)
An unincorporated association of small school districts, superintendents and school board
members of these districts, and parents and students brought suit charging that the General
Assembly had failed to meet the constitutional mandate 404 to maintain and support a system of
free public schools, thereby depriving the students, on whose behalf the suit was filed, a
fundamental right. Further, the complaint alleged that the state funding system violated state
equal protection provisions. Despite the defendants assertion, “that the only right guaranteed by
the education clause is ‘one of access to a free public school meeting the minimum standards
statewide,’ and that the equal protection provisions ‘only assure the nondiscriminatory
performance of the duty created by the education clause,’”405 the Supreme Court of Tennessee
reversed and remanded a court of appeal’s dismissal of the case. A trial court had issued a
memorandum for the plaintiffs, finding that there were constitutionally impressible disparities in
educational opportunities afforded under the state’s system, citing a direct correlation between
moneys expanded and the quality of education offered. During the appeal process, nine urban and
suburban districts were allowed to intervene as defendants, echoing the argument that the issue
was actually nonjusticiable, in addition to marking that if the court were to find to the contrary,
any proposed remedies should take account of the differences in costs and needs among districts;
a position of which the Supreme Court observed “[s]tated perhaps more simply, the larger, more
affluent systems do not want the funding scheme which favors their systems disturbed.”406
Detailing the disparities, the court noted the range of per classroom spending between affluent
and poor school districts in addition to the range that presented in per pupil expenditures and a
comparison to the state mean. The court also drew attention to the correlation between dollars
expended and quality of education received by noting the percentage of schools in the top ten
wealthiest school districts gaining accreditation as compared to the measure amongst the ten
poorest districts.407 Citing the distinct differences in such indices as computers, laboratory
facilities, current and new textbooks, advanced placement courses, and facilities, the court

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concluded “[t]he record establishes that the disparities in resources available to the various school
districts result in significantly different educational opportunities for the students of the state.”408
The court accorded no credence to the defendants argument that “there is no systematic
relationship between expenditures and student performance,” and that “disparities in expenditures
were [not] caused by the [plaintiffs’] lack of fiscal capacity.”409 To the contrary, it concluded that
the Tennessee Foundation Program, with its dependence on local property and optional sales
taxes, in addition to an inadequately funded equalization formula created the disparities, not an
inadequate local effort. In dismissing a contention that the issue was nonjusticiable, the court
cited its duty to consider whether the legislature had “disregarded, transgressed and defeated,
either directly or indirectly,”410 the provisions of the Tennessee Constitution in the establishment
and maintenance of the funding system. The opinion cited the Kentucky Supreme Court’s
response to the question of justiciability, reiterating that “[t]o avoid deciding the case because of
‘legislative discretion,’ ‘legislative function,’ etc. would be a denigration of our own
constitutional duty.”411 The defendants had also cited the absence of standards whereby a court
could judge the adequacy of an educational program. The court utilized a dictionary definition412
of education and cited that standard as sufficiently providing a means whereby to measure the
system. Yet the court choose to set aside the question whether the education system comported
with the education clause, rather its ruling was based on the determination that the plaintiffs were
entitled to relief under equal protection demands. In an opinion that did not entertain the
questions of fundamental rights or suspect classifications, the court determined the principle of
local control failed to present as a legitimate state interest in application of a rational relationship
analysis. The court observed that the concept of local control was a “cruel illusion” in districts
constrained by a dearth of the economic resources with which educational options could be
exercised. The ruling also marked the defendants’ argument that pointed to the constitutional
flexibility granted to counties, which by necessity countenanced the discretion granted to the
General Assembly in assigning relative shares of responsibility between state and local

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governments. The court responded ‘'the defendants’ rationale does not extend to using the
inability or indifference of local government to excuse a duty specifically imposed upon the
General Assembly by the constitution.”41 ’ Remarking that “[t]he essential issues in this case are
quality and equality of education,” the ruling did not necessitate equality of funding, as it
affirmed the trial court’s holding that the design of an appropriate remedy was the province of the
state legislature.414
Opinion of the Justices, 624 So.2d 107 (Ala. 1993)
In response to a query from the Alabama Senate, the Supreme Court of Alabama
rendered an advisory opinion to the effect that the legislature was required to comply with an
order to provide children with essentially adequate and equal education opportunities, pursuant to
a circuit court finding.415 The circuit court had consolidated the cases Alabama Coalition for
Equity, Inc. v Hunt416 and Harper v. Hun f17 and ruled that the plaintiffs were entitled to
declaratory judgment that the Alabama system of public schools, both in administration and
funding, violated the educational and equal protection mandates of the state constitution.418 In a
case in which the speaker of the Alabama House of Representatives, the Lieutenant Governor, the
State Superintendent of Education, and all members of the State Board of Education intervened as
plaintiffs, the circuit court gave considerable weight to statistical indices of disparities in finding
the system of elementary and secondary education inequitable and inadequate. The court cited
trial testimony that demonstrated the range of state and local revenues per pupil between the
wealthiest and poorest school district, the range of revenues per classroom between the five
wealthiest and five poorest school districts, and the range of revenues per pupil between the first
and fifth quintiles of districts grouped according to wealth.419 The range of per classroom
revenues with the inclusion of federal aid was also noted,420 as was the strong correlation
demonstrated between school district wealth and revenue.421 The circuit court observed that:

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Although equal educational opportunity cannot be measured exclusively in terms
of public school funding, there is no question that educational facilities, programs
and services—from field trips to computers—-cost money to provide, so
disparities in school funding must play a major role in the Court’s analysis.422
The circuit court induced from the testimony that the disparities did not just affect the
very wealthiest and the very poorest, but were in fact systematic. However, the court maintained
that statistical “outliers” merited consideration in response to the state’s contention that they were
misleading, observing that “the very best and very worse provision that the state makes for
students among schools in its school system is a highly relevant matter for inquiry when the issue
is differential treatment within the state system.”423 Whereas the state contended that the fiscal
disparities were the result of “local mismanagement or local choice not to fund schools”424 the
court agreed with the plaintiffs that they were the result of a funding system that relied upon local
property wealth. In consideration of the argument, the court wrote, “the distinction urged by
defendant between local and state funding for schools is an artificial one. By law, all public
school taxes are state taxes, and all public school funds are state funds, whether collected at the
state or local level.”425 In addition, the court detailed educational quality studies introduced by
the plaintiffs that documented the disparities in “school facilities, staff levels, curriculum, and
schools supplies and equipment in Alabama’s seven highest and eight lowest funded school
systems as measured by local revenues.”426 Alleging that the Alabama schools were inadequate in
absolute and relative terms, the plaintiffs presented measures of state and regional accreditation
standards, Alabama educational standards, and educational indices including drop-out rates,
college level remediation rates and preparation for work. The court found the findings, in
conjunction with measures of funding and educational opportunities, as a compelling
demonstration that the school system was in fact inadequate. While acknowledging that
disparities existed, the state countered that the situation was rationally justified by the state’s
design to foster local control, to which the court responded, “to the extent that school
opportunities are dependent upon wealth in this state...the Court finds that local control is

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defeated, rather than promoted by the present school system.”427 Nor did the court accept the
state’s defense that it could not afford to fund its schools adequately citing a limited tax base, the
court stating that a lack of funding was not a recognized cause for avoiding a constitutional
obligation. The court ruled that the educational article that called for the establishment,
organization, and maintenance of a liberal system of public schools created a state, not local
responsibility and guaranteed Alabama schoolchildren a right to attend schools which offered
them equitable and adequate educational opportunities. In addition to ruling that the Alabama
system was not in conformity with the constitutional mandate, the court also found it violative of
the equal protection demands of the state constitution, regardless of the standard of equal
protection review applied. Although noting that the question merited strict scrutiny given that the
court found education to be a fundamental right under the Alabama Constitution, it found the
system wanting on a rational relationship basis, calling attention to its previously noted dismissal
of a local control interest. The circuit court also found the system violated due process provisions.
The court marked that as the state of Alabama deprives students of their liberty by requiring them
to attend school, the law required that the service provided in justifying this denial, in this case
education, be provided in an adequate form. In enjoined the state to “establish, organize and
maintain a system of public schools, that provide equitable and adequate educational
opportunities to all school-age children, including children with disabilities, throughout the state
in accordance with the constitutional mandates...”428 the court outlined what it deemed to be the
“essential principles and features of the ‘liberal system of public schools’ required by the
Alabama Constitution...”429; among them sufficient oral and written communication skills,
sufficient mathematic and scientific skills, sufficient knowledge of economic, social and political
systems, sufficient understanding of governmental processes and of basic civic institutions, and
“sufficient support and guidance so that every student feels a sense of self worth and ability to
achieve, and so that every student is encouraged to live up to his or her full human potential.”430
Although conceding the inequity and inadequacy of educational opportunity in Alabama, the state

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proffered that the court was not the proper forum to address educational shortfalls and that a
ruling for the plaintiffs would violate legislative discretion and the separation of powers doctrine,
in addition to overstepping judicial constraints by dictating tax and budgetary policy.431 The court
responded that its authority to entertain the issue was bounded by the state constitution,
particularly given that it was “clear that the legislative and executive branches have repeatedly
failed to address the problems of which plaintiffs complain despite many opportunities to do
so.”432 Addressing the fiscal implications of judiciary activity, the court observed:
The Court neither taxes nor spends, but simply decides the case before it,
declares constitutional rights and, where necessary, enjoins their violation, as it
must in our constitutional system. Many (perhaps most) constitutional decisions
in practice have budgetary implications, but the actual fiscal effects of such
decisions are controlled not by the Court, but by policymakers, who establish
budgetary and tax policy in the first instance, and who must reckon the potential
cost of unconstitutional acts in that balance.433
McDuffy v. Secretary of the Executive Office of Education, 615 N.E.2d 516 (Mass. 1993)
In a suit that commenced in 1978, plaintiffs434 before the Supreme Court of
Massachusetts, Suffolk, challenged the constitutionality of the entire school financing system and
sought a declaratory judgment that the state had failed to provide them with an education as
mandated by the Commonwealth Constitution.435 The court declined to declare the system of
financing unconstitutional, rather it chose to confine itself to the consideration of whether the
constitutional language of the education article “is merely hortatory, or aspirational, or imposes
instead a constitutional duty on the Commonwealth to ensure the education of its children in the
public schools.”436 In an opinion that would find that the state was in violation of its
constitutional duty to provide all public school students with an “adequate” education, the court
considered if such a duty existed, the nature of such a duty and where it lay, and finally if the
record indicates that a duty was shown to be violated. In an exhaustive treatment of the state’s
educational history and the construction of the constitution, the court found that the document did
indeed impose a mandatory duty on the Commonwealth to educate all of its children.

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Specifically, they interpreted the call to “cherish” public schools as “a duty to ensure that the
public schools achieve their object and educate the people.”437 The court’s consideration of the
education clause compelled it to mark that:
[T]he Commonwealth has a duty to provide an education for all its children, rich
and poor, in every city and town of the Commonwealth at the public school level,
and that this duty is designed not only to serve the interests of the children, but,
more fundamentally, to prepare them to participate as free citizens of a free State
to meet the needs and interests of a republican government, namely the
Commonwealth of Massachusetts.438
In considering whether the state had met its constitutional mandate, the court referred to
evidence offered by the plaintiffs that compared four of the poorer communities from the sixteen
plaintiff districts439 to three of the state’s more affluent communities.440 Evidence was presented
noting disparities in class size, curricular offerings, teacher training, support staff and facilities. In
addition, the statements of the four superintendents of the four poorer districts and a 1991 Board
of Education report that stated “schools in the Commonwealth of Massachusetts are in a state of
emergency due to grossly inadequate financial support,” and that the education offered in many
districts is not “adequate” or “acceptable.”441 Crediting funding differences to a dependence on
local support, the court did not detail any statistical indices of financial disparities. While
acknowledging that equal expenditures per pupil was not mandated, the court determined that the
financing system had created a fiscal reality in which, “children in the less affluent communities
(or in the less affluent parts of them) are not receiving their constitutional entitlement of
education as intended and mandated by the framers of the Constitution.”442 In a ruling bereft of
generalizable research, the court did not explicitly mark what “adequacy” entailed, rather,
depending on the evidence of educational opportunity disparities, attempted to “ascertain... the
intention of the drafters of the constitutional language and to provide a frame of reference for the
implementation of that intent in a modem society.”443 Justice O’Connor, concurring in part and
dissenting in part, cited the absence of any “articulable” standard of adequacy, and questioned the
court’s dependence on the testimony offered to determine inadequacy noting that, “[t]he parties

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have not stipulated to the merit or correctness of the opinions. On the contrary, in a supplemental
stipulation, the parities have expressly agreed that, ‘there is no consensus among education
experts as to what constitutes an adequate education.’”444 The Massachusetts high court did offer
the guidelines set out by the Kentucky Supreme Court in Rose,445 for the legislature to consider as
it sought to remedy the constitutional violation the court had identified.446 In the absence of a
specific dictate, the court observed that, “[t]he content of the duty to educate which the
Constitution places on the Commonwealth necessarily will evolve together with our society.”447
While judging that no statutory enactment stood as constitutionally infirm, the opinion concluded
that as it had determined an enforceable duty had been established, the court retained the
discretion to determine, “whether, within a reasonable time, appropriate legislative action has
been taken.”448
Skeen v. State, 505 N.W.2d 299 (Minn. 1993)
Plaintiffs449 brought suit in 1988 against the state of Minnesota seeking declaratory and
injunctive relief claiming that the education finance system violated the state constitution’s
education and equal protection provisions. On appeal, the Supreme Court of Minnesota reversed
the judgment of a district court for the plaintiffs. The plaintiffs argued that the funding system
violated the “general and uniform” requirement of the education clause, contending that the
current system left too much discretion with local officials and permitted high wealth districts to
generate additional funding far in excess of lower and average wealth districts. In finding for the
state, the court cited “(1) the broad interpretation given to the phrase ‘general and uniform’ by
this and other state courts, and (2) the relatively small disparity' in funding, combined with the
plaintiffs admission that all schools in the state are able to provide an adequate education.”450
Calling attention to other state court decisions the court observed “The fact that plaintiff districts
are receiving an adequate level of basic education is the primary' distinguishing feature between
plaintiffs’ claim and those cases from other states in which a funding scheme has been found to

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violate a state constitutional provision.”45' The state, in meeting basic educational needs, had
fulfilled to mandate to establish “a general and uniform system of public schools,” through a
“thorough and efficient system of public schools.” In reference to the equal protection claim, the
court cited the explicit language of the education clause and the importance of education to the
state in marking education as a fundamental right. However, noting that the plaintiffs were unable
to “demonstrate that they have been subject to a history of purposeful unequal treatment or that
they have been relegated to a position of political powerlessness,”452 the court found no suspect
class. In addition, the court distinguished education as a fundamental right from that of funding
the education system, marking that “[t]he structure and history' of the Minnesota Constitution
indicates that while there is a fundamental right to a ‘general and uniform system of education,’
that fundamental right does not extend to the funding of the education system, beyond providing a
basic funding level to assure that a general and uniform system is maintained.”453 Applying the
rational basis test, judgment was rendered that state had a legitimate interest in encouraging local
districts to augment the basic revenue component and that the provision of this option, despite
disparities arising therefrom, was rationally related to furthering that goal. In an opinion making
note that the state’s equalization financing formula covered nearly 93 percent of the basic revenue
formula, leaving only 7 percent to local control, the court found that in the absence of glaring
disparities, the question was properly left to the legislature as it balanced equality, efficiency and
local control.
ISEEO v. Idaho State Board of Education, 850 P.2d 724 (Idaho 1993)
An unincorporated association of Idaho school superintendents,454 along with various
school districts, school children, and parents brought this action before the Supreme Court of
Idaho, charging that the state’s public education funding formula provided neither a uniform or
thorough system of education.455 Further, plaintiffs alleged that it violated the state’s equal
protection clause. In addressing the equal protection claim the court referenced its holding in

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Thompson v. Engelking456 that education was not a fundamental right. Maintaining that Article
IX, Section 1 of the Idaho Constitution imposed a duty on the legislature “to establish and
maintain a general, uniform and thorough system of public, free common schools”457 the supreme
court found that it mandated action by the legislature, but did not establish a fundamental right.
Considering the issue under a rational basis test, the court found no violation of equal protection
generated by the state’s funding system, save for those statutes which distinguished between
charter and non-charter school districts and the respective power to levy additional taxes.458
Therefore, the court on remand to the district court directed it to consider the equal protection
claim in relation to the statues in question utilizing an intermediate standard of scrutiny, finding
that the legislation presented as discriminatory, though not addressing a fundamental right.
Turning to the claim under the “uniformity” requirement, the court summarily dismissed the
plaintiffs’ argument, again citing Thompson, in holding the education article did not guarantee to
each school student the right to be educated in such a manner that services and facilities were
equal throughout the state. The court could not reference Thompson when addressing the
“thorough” requirement given that it was not addressed in the course of that litigation, al though
that ruling found the state’s public education financing formula to be constitutional. Moving on,
the court acknowledged the difficulty of determining what constituted a “thorough” education,
however noted that the state had recently established educational standards pursuant to the
legislature’s directive. For the court, these standards presented as a marker with which to consider
thoroughness. On remand, the opinion granted that the plaintiffs had stated a cause of action and
that if they were able to establish that the funding system failed to enable them to provide an
education which met state standards “they will have presented an apparent prima facie case that
the State has not established and maintained a system of thorough education.”459 The court also
countenanced the district court’s dismissal of a group of plaintiffs composed of taxpayers of
particular districts who were not parents of students or school administrators. Pursuant to Idaho
state court precedent, the court found that in light of the fact that this group did not suffer “a

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distinct palpable injury” due to the funding formula they lacked standing. The court did dismiss
the state’s argument that the school districts and superintendents also lacked standing, observing
that the parties had a “personal stake” in the outcome of the litigation and the resolution of
funding an education for pupils in their charge.460
Gould v. Orr, 506 N.W. 2d 349 (Neb. 1993)
Appellants sought a declaration that they were being denied due process, equal
protection, and an equal and adequate education due to the statutory system of funding public
education that presented as unconstitutional and inadequate.461 They contended that a funding
program in which 75 percent of each school’s budget was funded by local tax revenue and the
remaining 25 percent from the state resulted in severe disparities among districts. The complaint
noted, and court acknowledged, the range in revenues per pupil between the wealthiest and
poorest school districts and the range in assessed valuation per pupil between the 10 wealthiest
and 10 poorest districts in the state. While marking the significance of the funding disparities, the
Supreme Court of Nebraska found that:
In this case, appellants failed to state facts sufficient to state a cause of action.
Appellants’ petition clearly claims there is a disparity in funding among school
districts, but does not specifically allege any assertion that such disparity in
funding is inadequate and results in inadequate schooling. While appellants’
petition is replete with examples of disparity among the various school districts
in Nebraska, they fail to allege in their petition how these disparities affect the
quality of education the students are receiving...although appellants’ petition
alleges the system of funding is unequal, there is no demonstration that the
education each student is receiving does not meet constitutional requirements.462
Concurring with the trial court’s finding that education was not a fundamental right under
the state constitution and that the appellants had failed to demonstrate how referenced disparities
affected the quality of education, the supreme court did find “that the trial court should have
sustained appellee’s demurrers because appellants’ petition did not state a cause of action and the
trial court’s failure to sustain the demurrers constituted plain error.”463 Foreclosing further action,
the court declined to grant leave to amend the petition, premised as it was on the understanding

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that unequal funding equals unequal education, “because there appeared no reasonable possibility
that the defect could be remedied... ,”464
Claremont School District v. Governor, 635 A.2d 1375 (N.H. 1993)
The Supreme Court of New Hampshire reversed and remanded the judgment of a
superior court that the state’s system of funding public education was constitutional based upon
the premise that the New Hampshire Constitution imposed no duty on the state to support
education. While the plaintiffs also alleged equal protection violations and the institution of an
unreasonable and disproportionate tax, the Supreme Court confined its ruling to a consideration
of the state’s education article, Part II, Article 83, the “Encouragement of Literature” clause,465
and the duty that placed upon the state. In a reading of the clause, contexted in a discussion of its
drafting and development, the court ruled that the document clearly conferred upon the state a
duty to provide constitutionally adequate education and to guarantee adequate funding. While
declining to define the specific outlines of education as mandated by the constitution,466 “as that
task is, in the first instance, for the legislature and the Governor,”467 the court echoed the
Washington court in Seattle School District No. 1 of King City v. State468 as it observed “Given
the complexities of our society today, the State’s constitutional duty extends beyond mere
reading, writing and arithmetic. It also includes broad educational opportunities needed in today’s
society to prepare citizens for their role as participants and as potential competitors in today’s
marketplace of ideas.”469 Short of declaring education a fundamental right, the court found that “a
free public education is at the very least an important, substantive right.”470 The case was
remanded to the lower court for a determination of adequacy and state initiatives for its
provision.471

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Scott v. Commonwealth of Virginia, 443 S.E.2d 138 (Va. 1994)
Students and school boards throughout the Commonwealth had brought suit against the
state, contending that the system of funding public education violated the Virginia Constitution
by denying complainant students “an educational opportunity substantially equal to that of
children who attend schools in wealthier districts.”472 In a financing scheme that was composed of
both state and local mandated revenues and local discretionary funds, plaintiffs pointed to
disparities in both moneys and indices of educational quality. The Supreme Court of Virginia, in
affirming a finding of district court for the state, made note of the range of per pupil funding
between the wealthiest and poorest school districts, the range of teacher salaries between the ten
wealthiest and poorest school districts, and the range of per pupil instructional staff between the
ten wealthiest and ten poorest school districts. The range in spending per pupil for instructional
materials between the school divisions was also illustrated in addition to making note of the
range’s increase of approximately 14 percent in per pupil revenues over the course of one year.
Court also marked the disparities in educational programs between the affluent and poorer
districts, particularly in curriculum.4'3 However the court drew attention to the fact that the
plaintiffs had failed to allege that the current education system did not meet the state’s mandated
“Standards of Quality.” Acknowledging that education was a fundamental right, the court found
that while the constitutional call for the General Assembly to “provide for a system of free public
elementary and secondary schools for all children of school age throughout the
Commonwealth”474 was mandatory, the admonition to “ensure that an educational program of
high quality is established and continually maintained,”475 was aspirational, “stating a goal that
the General Assembly is admonished and encouraged to attain.”4,6 The court agreed with the
lower court that there was no constitutional mandate for the provision of “substantial equality” as
the plaintiffs had argued. The court opined that even under application of strict scrutiny, the
state’s provision of public education as constituted did not violate the Virginia Constitution. The
opinion observed “while the elimination of substantial disparity between school divisions may be

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a worthy goal, it simply is not required by the Constitution. Consequently, any relief to which the
Students may be entitled must come from the General Assembly.”477 Further, delineating the
bounds of the judiciary in reference to the issue of education, the court marked that:
The Constitution...accords the General Assembly the ultimate authority for
determining and prescribing the standards of quality for the school
division...[and that] the Constitution requires the General Assembly to determine
the manner of funding to provide the cost of maintaining an educational program
that meets the prescribed standards of quality and how the cost shall be
apportioned between the Commonwealth and the localities.478
Bismarck v. State, 511 N.W.2d 247 (N.D. 1994)
Plaintiffs had brought suit contending that the state’s method of financing public
education, based on ad valorem property taxation violated the state’s equal protection guarantee
in that it served to create different classes of districts depending upon whether they were property
wealthy or property poor. The Supreme Court of North Dakota affirmed a lower court’s ruling for
the plaintiffs, however reversed its determination to retain jurisdiction and oversee the remedy of
educational disparities. Nonetheless, the supreme court was precluded from declaring the
statutory scheme unconstitutional despite its finding. The North Dakota Constitution required a
‘super-majority’ of at least four justices to declare a legislative enactment unconstitutional and
only three justices joined in the opinion. The opinion, in considering the statistical indices of
disparity, had to take note of the odd configuration of schools in North Dakota, ranging from high
school districts offering kindergarten through 12th grade, to rural districts “which usually offer
instruction to small enrollments in one classroom with one teacher,” and nonoperating districts
which provided tuition for students to attend neighboring school districts.479 The court marked the
range of assessed property values per pupil across the state and the mean of the same. Including
all variations of districts, the range of per pupil expenditures was detailed Distinguishing the
school districts, the range of per pupil expenditures in high school districts in addition to the
mean were noted, as were the ranges demonstrated in the elementary and rural school districts.
The court found that the state’s foundation aid plan which accounted for 52.8 percent of total

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educational revenues did little to offset the extreme disparities it detailed.480 The plaintiffs had
also alleged a violation under the state’s educational article, contending that the system failed to
provide a “uniform system of free public schools throughout the state,”481 however admitted that
educational opportunities were not totally inadequate. That, in addition to the parties’ agreement
that “mere uniformity alone does not fully define the Legislature’s constitutional obligation under
the education provisions,”482 compelled the court along with the plaintiffs and defendants to
confine consideration to an equal protection argument. Both parties had agreed that under the
North Dakota Constitution, education was a fundamental right. Distinguishing the financing of
this fundamental right, from the right itself to the provision of a “general and uniform system of
public schools,” the court declined to introduce a strict scrutiny analysis in the absence of
substantial deprivation, opining that “[subjecting the entire method of financing education to the
exacting level of strict scrutiny would essentially require the judiciary to micro-manage and
second guess difficult policy decisions in the legislative arena.”483 However, while
acknowledging that the financing system did not totally deprive any students of access to
education, it did involve important substantive matters directly affecting that right and thus
warranted an intermediate level of scrutiny, under which the state was required to demonstrate the
close correspondence between statutory classifications and legislative goals. Considering
disparities in educational opportunity indices ranging from curriculum to facilities, in addition to
teacher pupil ratios per 1,000 pupils in the lowest revenue districts compared to the highest
revenue group, the court found that the distribution system failed to “bear a close correspondence
either to the constitutional mandate to provide an equal educational opportunity, or to the
legislative goal of ‘supporting elementary and secondary education in this state from state funds
based on the educational cost per pupil.’”484 The court, observing that “[w]e do not hold that any
one of the various statutes for distributing funding by itself, is unconstitutional, or that our
constitution require equal dollar funding per pupil throughout the state,”485 held that the effect of
the system in total was unconstitutional. The two dissenting justices took issue with the

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majority’s utilization of statistical measures of disparities, one arguing that student output was a
far more appropriate measure citing the top score North Dakota students produced on
standardized tests, far exceeding national averages.486 A second dissent, while countenancing that
the system evidenced serious disparities that portended future problems for the system as a whole,
observed that “A comparison of the very worst with the very best of 269 school districts cannot
be the basis for finding unconstitutional disparity among all districts.”487
Roosevelt v. Bishop, 877 P.2d 806 (Arizona, 1994)
School districts and parents brought suit against the state to invalidate the statutory
structure for financing education. The Supreme Court of Arizona reversed and remanded the
ruling of a lower court, finding that the funding program was itself the cause of significant
disparities and failed to comply with the “general and uniform” requirement of the Arizona
Constitution.488 The issue before the court was not explicitly one of educational adequacy rather it
entertained how funding disparities were reflected in capital financing. The court observed that
“[although it seems intuitive that there is a relationship between the adequacy of education and
the adequacy of capital facilities.. .this case affords us no opportunity to define adequacy of
education or minimum standards under the constitution.”489 Maintaining that the quality of a
school district’s capital facilities was directly proportional to the property value within the
district, the court called attention to the range of assessed valuation per pupil between the
wealthiest and poorest school districts in the state.490 Illustrating the concrete ramifications of
funding differences, the court cited the admission of the Superintendent of Public Instruction that
there is a “sense of.. .bareness about some of the facilities in the poorer districts, that they are
minimal...It is basically four walls, a roof, and classroom inside, and that’s about the extent of
it.”49! The state’s funding program drew 45 percent of its revenue from local sources, while
making provision for a state equalization contribution. However, due to the relative scarcity of
state level financing, poorer school districts were often forced to divert funds from capital facility'

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financing to maintenance and operations. The court concluded that “the statutory effort at
equalization, although well motivated, predictably fails.”49" The court did consider an equal
protection argument, noting the plaintiffs’ questioning of the same court’s application of a
rational basis test in Shofstall v. Hollins,493 given that education is acknowledged as a
fundamental right in Arizona. In retrospect, the supreme court questioned “how the rational basis
test can be used when a fundamental right has been implicated,”494 however, the court decline to
entertain equal protection, offering that in the instant case, the education clause specifically
addressed the subject at issue. In framing the import of “general and uniform” the state noted the
understanding in Shofstall that “defined uniformity by reference to statutes which set up a
framework for required courses, teacher qualification and the like.”495 The state argued “that as
long as the framework of the system is general and uniform the substance of the system need not
be,”496 After first dismissing the state’s additional argument that the responsibility for funding fell
to the school districts not the state, the court judged that the “general and uniform” clause meant
more than framework and while not requiring that districts be identical or equal, did require that
funding systems provide sufficient moneys that children may be educated on substantially equal
terms, the vagueness of which was noted in the dissent.497 The court pointed out that disparities
due to local control did not violate the constitutional mandate, going so far as to remark that “if
citizens were not free to go above and beyond the state financed system to produce a school
system that meets their needs, public education statewide would suffer.”498 However, it agreed
with the school districts that the disparities in capital facility funding were not a product of local
discretion, rather the result of a formula that was “a combination of heavy reliance of local
property taxation, arbitrary school district boundaries, and only partial attempts at
equalization.”499 The majority opinion marked:
In short, the system the legislature chooses to fund the public schools must not
itself be the cause of substantial disparities. There is nothing unconstitutional
about relying on a property tax. There is nothing unconstitutional about creating
school districts. But if together they produce a school system that cannot be said
to be general and uniform throughout the state, then the laws chosen by the

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legislature to implement its constitutional obligation under art. XI, § 1 fail in
their purpose.500
Having concluded that the financing scheme was in fact the cause of disparities and was
inherently incapable of rectifying the situation, the court found the entire system unconstitutional
and granted the trial court jurisdiction “to determine whether, within a reasonable time, legislative
action has been taken.”501
Unified School District No. 229 v. State, 885 P.2d 1170 (Kan 1994)
Ninety-seven plaintiffs, including unified school districts, taxpayers, and students
challenged the constitutionality of the state’s School District Finance and Quality Performance
Act [hereinafter, the Act], A district court upheld the Act against the charge that it was violative
of state’s constitutional authority granted to elected school boards to operate and maintain
schools, that it failed to meet equal protection demands in addition to failing to provide suitable
provision for the financing of education and that it violated both the federal and state
constitutions given that the recapture provisions constituted an excessive “taking” of property.
The Supreme Court of Kansas affirmed the lower court’s ruling upholding the Act’s
constitutionality. In a legislative initiative designed to correct deficiencies in educational finance
provision arising under the state’s School District Equalization Act of 1973 the School District
Finance and Quality Performance Act was enacted in 1992.502 The Act placed a cap on a district’s
levy of ad valorem taxes, mandating that districts that generated revenues in excess of its
legislatively determined “state finance aid” were required to remit such funds, generally referred
to as “recapture” funds, to the state. Plaintiffs argued that the funding program via the imposition
of a state wide levy and the diminution of each district’s budgetary authority infringed on the
local control provision. The court found that the constitution “places the responsibility of
establishing and maintaining a public school system on the State. Kansas school districts have no
inherent power of taxation and never have had.” Further it noted that “[t]he legislature, in

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exercising its power to finance public schools, did not unduly impede the power of locally elected
boards to establish, maintain, and operate schools.”503 In considering the provision of suitable
funding, the plaintiff school districts which had seen funding reduced by the Act, pointed to the
curricular reductions which they were forced to introduce in their education programs to
accommodate the revenue restrictions. While acknowledging that wide disparities did exist within
the state, the districts claimed that the “legislature is improperly cutting off the mountain tops to
fill in the valleys.”504 The district court had cited the provision of more equitable funding for
students regardless of district wealth as one of the Act’s goals, an opinion with which the
Supreme Court was in accord, while noting as did the lower court that the issue for judicial
determination was “whether the Act provides suitable financing, not whether the level of finance
is optimal or the best policy.”505 For the court, the call for suitable financing was analogous to
adequacy and as such, did not imply any objective, quantifiable education standards which a court
could measure. However, in consideration of a suitable level of financing, the court detailed the
record of the lower court as it considered the standards enunciated in Rose v. Council for Better
Education,506 and Abbott v. Burke,501 among others and found that the ten standards established
for Kansas schools for accreditation purposes included within the Act “provided a legislative and
regulatory mechanism forjudging whether the education is ‘suitable.’”508 While acknowledging
that the suitability of education bears continual monitoring the lower court determined, and the
supreme court agreed, that the funding level as constituted provided for a suitable education
throughout the state as measured against the legislatively determined markers. Turning to an
equal protection argument, the court first affirmed that education was not a fundamental right in
Kansas and further, the plaintiffs did not present as a suspect class. At issue, according to the
plaintiffs, was the categorizations created for state funding provisions, particularly the
designation of weighting factors for determining the budgetary demands beyond the state’s basic
student appropriation; calculations which they maintained lacked any empirical or statistical
basis. In response, the court observed that the “funding of education is a complex, constantly

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evolving process....[and] [r]ules have to be made and lines drawn in providing ‘suitable
financing.’ The drawing of these lines lies at the very heart of the legislative process and the
compromises inherent in the process.”509 Further, the court found itself in agreement with the
lower court’s determination that, in light of the questionable correlation between education and
funding, education was ill suited for equal protection analysis, finding that “it is difficult, if not
impossible, to develop an ascertainable standard by which to measure equality.”510 Applying a
rational basis test, the court found a legitimate relationship between the state’s objective of more
suitably funding public education via the Act and the classifications created. As to the question of
whether the “recapture” provision violated the Fifth and Fourteenth Amendments of the Federal
Constitution in addition to the state constitution, the court ruled that there was not a
disproportionate burden placed on the affluent districts in relation to the benefits they received.
Rather, “each Kansas taxpayer benefits from the quality or suffers from the lack of quality of the
education received by all Kansas students.”5" The opinion held that for funding purposes, the
state of Kansas had to be viewed as whole, as opposed to legislatively created districts. Given that
any disparities that presented were the result of student needs as recognized by the weighting
system and that an adequate education was being provided, the court found the Act to be
constitutional.
School Administrative District No. 1 v. Commissioner, 659 A.2d 854 (Maine 1995)
The Supreme Judicial Court of Maine affirmed the judgment of a state superior court that
the funding reductions introduced in state’s education finance statutes pursuant to the amending
of the School Finance Act512 did not violate the right to equal protection of the plaintiffs,
comprised of eighty-three school districts and three students. The plaintiffs had made no claim
that they were being denied an adequate education rather they challenged the straight percentage
reduction of funding, arguing that its application disproportionally reduced the state subsidy.
Under an equalization scheme, districts with lower property values per student received

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proportionally higher state funding than units with higher values, thus the disproportionate loss of
revenue. In rejecting the plaintiffs call for the application of a strict scrutiny standard, the court
determined that no suspect class presented before the tribunal. The court also declined to entertain
the question of whether education constituted a fundamental right, opining that even if it did,
thereby necessitating strict scrutiny, the plaintiffs’ argument would fail given that they had
presented no evidence that any disparities resulted in students receiving an inadequate education.
While not making an adequacy argument, the plaintiffs did introduce testimony to the effect that
funding disparities, illustrated through equity measures,513 had increased following the mandated
reductions. The court did not specify which measures were referenced nor values presented,
although it did note testimony offered by the defendants contradicting conclusions drawn by
plaintiffs witnesses.514 The court did make note of testimony to the effect that equity was but one
aspect of a successful school finance system, to be included with “adequacy, liberty or local
choice, and efficiency.”515 The marked disparities or lack thereof, were inconsequential to the
court’s ruling. Rather, based on a reading of the Maine Constitution,516 the court judged that the
education clause required no more than that the state enforce the mandated municipal obligation
to support education. It observed that “[ejven if we were able to conclude that education is a
fundamental right in Maine, plaintiffs offer no authority for the proposition that they have a
fundamental right under the Maine Constitution to state funding, a particular mechanism for state
funding, or a particular method for reducing state funding.”517 The court reflected the reasoning
of the Minnesota court in Skeen v State518 which distinguished the categorization of education as a
fundamental right from that of financing education. The opinion found that the School Finance
Act furthered a legitimate state goal of subsidizing local effort while operating within statewide
budgetary constraints. The ruling concluded that “under our Constitution, the level of state
support is largely a matter for the Legislature. Therefore, whether the funding reduction
amendments to the School Finance Act are wise or not, and whether they are the best means to
achieve the desired result, is a matter for the Legislature and not this Court.”519

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City of Pawtucket v. Sundlun, 662 A.2d 40 (R.1. 1995)
Article XII. Section 1, of the Rhode Island Constitution declared it “the duty of the
general assembly to promote public schools, and to adopt all means which they may deem
necessary and proper to secure to the people the advantages and opportunities of education.”5i0 A
Rhode Island Superior Court had rendered judgment that the state’s public school financing
system violated the constitution, both in reference to the education article and equal protection
demands in response to action brought against state officials by three state communities. On
appeal the Supreme Court of Rhode Island reversed the lower court ruling, determining that the
state’s “statutory scheme for financing public education does not violate either the education
clause (article 12) or the equal protection provision (article 1, section 2) of the state
constitution.”521 In consideration of the plaintiffs’ call for the state to implement a system of aid
which would levy taxes fairly in order to provide equal educational opportunities and assign
resources uniformly, the court addressed the scope and context of the education clause as it was
reflected in constitutional provisions and the funding statutes. The court concluded that disparities
in funding per pupil were not a concern of those drafting the constitutional provision, and further
observed that during the state’s 1986 Constitutional Convention, three resolutions to amend the
clause calling for equal educational opportunity on a per capita basis and a financial system based
totally on appropriations from the state, in addition to the proposal that all funds be distributed on
an equal basis were defeated. Taking issue with the lower court, the supreme court found that a
reading of the education clause from an historical and legislative perspective demonstrated that it
did not cast education as a fundamental right nor guarantee an “equal, adequate and meaningful
education.”522 Whereas the lower court had interpreted “promote” in the clause as requiring the
state “found” or “establish” schools, the opinion determined that dating from the adoption of
Article XII, “the establishment of schools has been left to the local communities, although
financial and other assistance were provided by the state.”523 Further it found no standard or
authority assigned to the court whereby it could review the General Assembly’s performance in

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reference to education, writing “[t]he education clause leaves all such determination to the
General Assembly’s broad discretion to adopt the means it deems ’necessary and proper’ in
complying with the constitutional directive.”5"4 The court responded to the correlation between
funds and “learner outcomes” drawn by the plaintiffs by stating “the analysis of the complex and
elusive relationship between funding and ‘learner outcomes’ when all other variables are held
constant, is the responsibility of the Legislature, which has been delegated the constitutional
authority to assign resources to education and competing state needs.”525 The supreme court
chastised the plaintiffs, charging:
[T]hey urged us to interfere with the plenary constitutional power of the General
Assembly in education...by urging that we order “equity” in funding sufficient to
“achieve learner outcomes,” plaintiffs have asked that the court take on a
responsibility explicitly committed to the Legislature....Moreover, plaintiffs have
asked the judicial branch to enforce policies for which there are no judicially
manageable standards.526
To emphasize the point, the opinion warned:
[T]he absence of justiciable standards could engage the court in a morass
comparable to the decades long struggle of the Supreme Court of New Jersey that
has attempted to define what constitutes the “thorough and efficient” education
specified in that state’s constitution....The volume of litigation and the extent of
judicial oversight provide a chilling example of the thickets that can entrap a
court that takes on the duties of a Legislature.527
Having disposed of the education clause issue, the court turned to the equal protection
demand, noting from the start that “education is not generally a judicially-enforceable right,” and
that relative wealth of the plaintiffs did not qualify them as a suspect class. Turning to funding
disparities, the supreme court took the lower court to task for its disregard of the evidence
provided by the defendants illustrating the favorable national ranking of Rhode Island in terms of
funding disparities and the degree of disparities among various state school districts. The court
wrote, “[w]e are of the opinion that such evidence is not only relevant, but is necessary to provide
a factual context within which a meaningful evaluation of the arguments and allegations of both
parties can take place.”528 Citing per-pupil expenditures in the state in comparison to that of other
states and expenditure disparities among districts as “of particular interest and significance,” the

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court relied upon a ratio derived by dividing the per pupil expenditures at the 95th percentile by
the per pupil expenditures at the 5th percentile, the value of which placed Rhode Island behind
only Hawaii and the District of Columbia in terms of equalized spending.329 Taking pause to note
that it was not an endorsement of the status quo, the court found that in light of these measures
the “General Assembly has made a sufficient and rational effort in funding education such that
judicial oversight is not warranted.”530 The court made specific reference to the trial court’s
treatment of “equity” which reasoned that each student had a right to an “equal, adequate, and
meaningful education.” The state high court was troubled by its reliance on an understanding of
equity as requiring “a sufficient amount of money is allocated to enable all students to achieve
learner outcomes....”531 Reiterating the tenuous relationship between money and educational
quality and outcomes, the court determined that any definition of equity was beyond its purview
and was rightly the prerogative of the legislature. In addition, responding to the plaintiffs’ charge
that wealthier school districts were able to offer a variety of elective course, the court observed
that the key challenge in education was achievement in the core subjects—reading, mathematics,
and writing—and that the state’s education program provided for these regardless of school
district wealth.532 With this understanding, the court introduced a “minimal-standard of review”
in its equal protection analysis and found that the funding scheme met a legitimate state interest in
preserving local control and discretion. The opinion concluded that:
[T]he legislative and executive offices have the responsibility to allocate limited
and often scarce resources among the virtually unlimited needs and demands not
only to support education but also to care for the sick, to support the poor, to
maintain our highways, to provide for the safety of our citizens, and numerous
other demands A judge accustomed to the constraints implicit in adversary
litigation cannot feasibly by judicial mandate interfere with this delicate balance
without creating chaos.533
Campbell County School District v. State, 907 P.2d 1238 (Wyo. 1995)
Plaintiffs sought declaratory and injunctive relief against the state, arguing that
components of its public school financing system were unconstitutional under both the education

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article and equal protection section of the Wyoming Constitution.534 Of the five components of
the state’s financing scheme, a district court declared three to be unconstitutional and two to be
constitutional. On cross appeal the Supreme Court of Wyoming found the entire public school
financing system unconstitutional. The same court, in Washakie County School District No. One
v. Herschler,535 had declared education as a fundamental right and struck down the then existing
funding system under the equal protection provision of the state constitution. In response, the
Wyoming Legislature implemented financing redesign, introducing a statewide uniform
mandated local levy, a statewide levy, a county mill levy, an optional mill levy and a recapture
scheme. The legislation included revenue raising and revenue distribution provisions. In 1992,
certain school districts again challenged the financing scheme, alleging these statutes exacerbated
the disparities cited in Washakie, and given that these differences were wealth-based and not cost-
justified violated the supreme court’s ruling that the state demonstrate equality of financing of
education in order to achieve equality in the provision of quality education. The defendants did
not dispute the disparities the plaintiffs noted and the court acknowledged by detailing the
increase in the range of general fund revenue per student.536 However, defendants asserted that
the plaintiffs had failed to demonstrate “that the challenged features significantly deprived,
infringed upon, or interfered with their educational rights.”537 In response, the district court
offered that pursuant to Washakie, the plaintiffs did not bear the burden of demonstrating that
unjustified disparities caused harm to educational opportunity, rather harm was presumed, a
reading with which the supreme court concurred. In consideration of the constitution’s education
provisions and the statutory education system the court interpreted that:
[W]e can define a “complete and uniform system of public instruction” as an
organization forming a network for serving a common purpose of
instructing/educating the public which organization has all the necessary parts or
elements and has always the same form; and we can define “a thorough and
efficient system of public schools adequate to the proper instruction of the state’s
youth” as an organization forming a network for serving the common purpose of
public schools which organization is marked by full detail or complete in all
respects and productive without waste and is reasonably sufficient for the

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appropriate or suitable teaching/education/leaming of the state’s school age
children.538
Observing that the educational provisions must be construed broadly given the dynamic
nature of educational philosophy and needs, the court ruled that the constitution mandated the
provision to Wyoming students, “a uniform opportunity to become equipped for their future roles
as citizens, participants in the political system, and competitors both economically and
intellectually.”539 The court distinguished the instant case from Washakie, observing that the latter
addressed disparate funding due to reliance on local assessed valuation, while the present
entertained disparate funding arising from arbitrary and irrational devices540 employed in
distribution in addition to revenue raising provisions which bore the same flaws. In light of the
resulting revenue differences, the court again referred to Washakie, which although not defining
“equal opportunity for a quality education,” ruled that there was no hope of reaching “equality of
quality,” absent financial equality.541 In its treatment of equal protection, the supreme court
observed that the lower court had erred in the application of a “equitable allocation/rational
scrutiny” standard in its consideration of the distribution provisions. Whereas other courts had
distinguished the nature of the right to an education from the financing of education,542 the
Wyoming Supreme Court declared “this court will review any legislative school financing reform
with strict scrutiny to determine whether the evil of financial disparity, from whatever
unjustifiable cause, has been exorcised from the Wyoming educational system.”54j Within that
analytical framework, the court dismissed the state’s assertion of local control, finding that it was
not a constitutionally recognized interest and did not justify disparities in educational funding and
thus, opportunities. In addressing equity, the court opined that ‘“[tjhere doesn’t have to be losers
in the system,’ is definitive of the meaning of equal educational opportunity.”544 Stating that a
proper education required “appropriate curriculum in core curriculum, core skills, advanced
placement courses and rapidly changing computer technology, small schools, and small class
size,”545 the court ruled that these indices of educational quality must be afforded to all students.

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Considering these factors, the court then directed the legislature to “design the best educational
system by identifying the ‘proper’ educational package each Wyoming student is entitled to have
whether she lives in Laramie or Sundance.”546 Stating unequivocally that the education system
must achieve financial parity, the court directed that “[supporting an opportunity for a complete
proper education is the legislature’s paramount priority; competing priorities not of constitutional
magnitude are secondary and the legislature may not yield to them until constitutionally sufficient
provision is made for elementary and secondary education.”547 With that admonition in mind, the
court ordered the legislature to demonstrate compliance with its ruling no later than July 7,
199 7 548 and directed the lower court to retain jurisdiction until “a constitutional body of
legislation is enacted and in effect....”549
Withers v State, 891 P.2d 675 (Or. 1995)
During the 1993 legislative session, the state legislature had retained a recently enacted
public school funding system550 which had appropriated general fund revenues to replace
property tax revenues lost due to the statutes’ progressive restriction on the rate which locales
might tax real property. The legislative body afforded a transitional mechanism which was to be
in effect until the end of the 1994-95 fiscal year, at which time all districts would receive
revenues according to the statutory distribution formula. Plaintiffs in this case conceded that the
distribution formula was both fair and equitable. However, due to the phase-in provision, these
districts would receive less revenue than they would without these temporary limitations. As a
result they were being denied both educational opportunities in violation of the state
constitution’s education article and equal protection under the Oregon and Federal Constitutions.
The plaintiffs did not charge that they were being denied an adequate education rather the
continuing existence of disparities violated the constitutional requirement that there be a
‘uniform’ system of public education.551 The court of appeals determined that the state supreme
court’s ruling in Olsen v. State,55' controlled the disposition of the education article claim. In that

246
decision, the court determined that Article VIII, Section 3 required that the state provide for
minimal educational opportunities and that local districts were free to furnish over that minimum.
That conviction was reaffirmed in the subsequent Coalition for Equit. School Fund. v. State of
Oregon,553 In addressing an equal protection claim, the court declined to entertain whether the
plaintiffs constituted a “true class” (analogous to a suspect class) given that they were not
attacking the formula by which funds are to be distributed to individual districts, rather they
challenged the mechanism by which the legislature has chosen to introduce the funding scheme.
Marking the plaintiffs’ challenge to the phased-in provision, the court noted “[according to the
plaintiffs, they have a constitutional right to total funding under the formula now.”554 The court
observed that the apparent purpose of the legislation was to avoid inflicting the harm immediate
equalization of funding would enact on traditionally higher funded districts. Accordingly, the
opinion stated:
[T]he question becomes whether it is better policy to implement incrementally
funding equalization to benefit students in some districts than to require
immediate funding equalization to benefit students in other districts. That is
precisely the sort of public policy choice the legislature is constitutionally
empowered to make and which w'e are in no position to second-guess.555
In light of this exercise of judicial restraint, the court concluded that there was a rational
basis for the implementation scheme thus beyond the purview' of the judiciary. The same
reasoning was applied to the dismissal of an equal protection claim under the Federal
Constitution.556
R.E.F.I.T. v. Cuomo, 655 N.E.2d 647 (N.Y. 1995)
The plaintiffs in this case before the Court of Appeals of New York, Reform Educational
Financing Inequities Today (R.E.F.I.T.), a non-profit organization, alleged that the statutory
scheme by which New York financed its public schools violated the educational article of the
New York Constitution and the equal protection clauses of the state and federal constitutions. The
education article mandated that “the legislature shall provide for maintenance and support of a

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system of free common schools, wherein all the children may be educated.”55' in Levittown v.
Nyquist558 this court held that the constitutional provision did not require that all educational
services and facilities be substantially equal, rather the tribunal called upon the legislature to
provide a system of free schools that would provide all students with a “sound basic education.”
The plaintiffs in this action did not claim that students in their districts were receiving less than
this standard, rather they contended that due to continued reliance upon local property wealth, the
system now exhibited far greater funding disparities than presented in Levittown. The court,
referencing Levittown, reiterated its’ holding that “even a claim of extreme disparity” cannot
demonstrate a “gross and glaring inadequacy” which would call into question the constitutionality
of the funding scheme.559 The court observed that “[g]iving plaintiffs' submissions the benefit of
every favorable inference, they simply do not state a claim that these disparities have caused
students in the poorer districts to receive less than a sound basic education, which is all that they
are guaranteed by our Constitution.”560 In dismissing the equal protection claim, the ruling cited
precedent in again applying a rational relationship analysis, consenting that the state's desire to
maintain local control provided the necessary justification for the system’s design.
Campaign for Fiscal Equity v. State, 631 N.Y.S.2d 565 (N.Y. Ct. App. 1995)
The Court of Appeals of New York was called upon to determine whether plaintiffs
“complaint pleads viable causes of action under the Education Article of the State Constitution,
the Equal Protection Clauses of the State and Federal Constitutions, and Title VI of the Civil
Rights Act of 1964 and its implementing regulations.”561 The plaintiffs, comprised of the
Campaign for Fiscal Equity Inc. (CFE), a non-profit profit corporation, thirty-two of New York
City’s school districts and individual students brought this action seeking declaratory judgment
against the state, claiming that the funding system for public education was unconstitutional,
specifically in reference to the financing of New York City schools The lower court ruled, and
court of appeals concurred, that the school districts lacked the legal capacity to sue. Turning next

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to the education article the court reviewed its finding in Levittown v. Nyquist562 in which the body
rejected a challenge to the constitutionality of the state1 public school financing scheme. In
response to the plaintiffs’ complaint “that minimally acceptable educational services and
facilities”36, were not being supplied in the plaintiffs school districts, the court reiterated its
finding in Levittown that while the educational article did not demand uniformity, it did mandate
that the state offer to all children the opportunity of a sound basic education. While declining to
specify what constituted a sound basic education which would meet the constitutional mandate,
the court did offer that it should “consist of basic literacy, calcul ating, and verbal skills necessary
to enable children to eventually function productively as civic participants capable of voting and
serving on a jury.”564 Considering the evidence the plaintiffs’ presented to support claims of
inadequacies, the court determined that the “plaintiffs have alleged facts which fit within a
cognizable legal theory,”565 and as such had presented a viable cause of action under the
education article. The court did observe that in order to “succeed in the specific context of this
case, plaintiffs will have to establish a causal link between the present funding system and any
proven failure to provide a sound basic education to New York City school children.”566
In dismissing the claims under the equal protection provisions of both the New York and
Federal Constitutions, the majority opinion again referenced the court’s reasoning in Levittown.
Reaffirming that education was not a fundamental right the court rejected the plaintiffs’ call for
application of heightened scrutiny and instead utilized a rational basis test as the appropriate
standard. While the plaintiffs had claimed that the state funding mechanism had a disparate
impact on African American and other minority students, the court relied upon case law to rule
that “an equal protection cause of action based upon a disproportionate impact upon a suspect
class requires establishment of intentional discrimination.”567 In dismissing the claim under Title
VI, the court also referenced the absence of intentional discrimination, citing Guardians Assn. v.
Civil Serv. Commn,i6i to note that “intent is required to make out a violation of Title VI.”569
Finding no such showing in the instant case, the court then turned to the claim under Title Vi’s

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implementing regulations. Citing that 74 percent of the state’s minority student population
attended City schools and that minorities made up 81 percent of the City’s public school
enrollment, while receiving 12 percent less state aid than the state wide average,170 the plaintiffs
complained of a funding program which had “the effect of subjecting minority students to
discrimination on the basis of their race, color, or national origin.”571 Ascertaining that under Title
VI implementing regulations, proof of effect, not discriminatory intent, was a perquisite to a
cause of action, the court concluded that the plaintiffs had in fact stated a cause of action under
these regulations, absent the presentation of a substantial justification for the challenged practice
on the part of the defendants.
Judge Simons, dissenting in part, called for dismissal of the plaintiffs’ cause of action
under the education article of the state constitution. The justice was particularly concerned as to
the expansion of the judiciary’s role, writing:
This assumption of power in the field of education sets a precedent for other
areas that will be hard for the courts to resist in the future. The State Constitution
is a voluminous document covering not only the distribution and scope of power,
but also addressing dozens of other matters as diverse as public housing, nursing
homes, canals, ski trails and highways. The State, to a greater or lesser degree, is
directed to maintain and protect all these services and facilities. It cannot be that
each of them are matters calling for quantitative and qualitative judicial oversight
in their funding and operation....The temptation to address these school problems
judicially is understandable. But the Constitution provides for particularized
areas of responsibility and it is not for the courts to mandate that the State must
spend more of its finite resources for education and less, say, for housing the
poor or healing the sick....Those are choices delegated to the people’s elected
representatives, not Judges, and in the absence of their manifest failure to address
the problem, the judiciary should refrain from interfering.572
Leandro v. State, 468 S.E.2d 543 (N.C. Ct. App. 1996)
Plaintiffs, comprised originally of five boards of education in low wealth districts and
individuals in those districts, charged that the North Carolina public school system, particularly
its’ funding program, violated the state’s constitution and other statutes by failing to provide
adequate and substantially equal educational opportunity.57j Six boards of education from urban

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school districts subsequently intervened as plaintiffs, alleging that the state failed to implement a
education financing system which took into account the extraordinary needs of urban school
districts, i.e., special education services, English as a second language programs, and
academically gifted services in addition to the dynamic of “municipal overburden." The court of
appeals, reversing the trial court and finding for the state, first considered Article IX, Section 2
(1) of the North Carolina Constitution.574 Referring to the Nort h Carolina Supreme Court’s
opinion in Britt v. N.C. State Board of Education,575 the court affirmed that the “general and
uniform” language of the education article “refers to uniformity, not in its educational programs
or facilities, but in the State’s system of public education.”576 Britt established, and the court in
instant case reaffirmed, that education was not a fundamental right, nor did the constitution
provide a fundamental right to “equal educational opportunities.” According to the court, that
phrase in the education article distinguished a constitutional mandate confined to equal access to
public schools. The plaintiffs marked that in contrast to Britt their claim was for substantial
equality not absolute equality. They maintained that although the constitution did not expressly
provide for an “adequate” education, it could be inferred. The court determined that the
fundamental right to equal access framed the constitution’s educational intent and did not
embrace a qualitative standard, thus found no basis for the plaintiffs assertion of a fundamental
right to an adequate education. In dismissing that assertion, the court effectively foreclosed the
plaintiffs’ equal protection claim, a determination underscored by the absence of a demonstrable
suspect class. The plaintiffs’ failure to establish adequate educational opportunities as a
fundamental right also compelled the court to rule that the districts’ substantive due process claim
could not be maintained. In light of the dismissal due to the absence of a legally sufficient cause
of action, the court declined to entertain the state’s judiciability arguments, although the opinion
was premised on the recognition that “education is primarily the responsibility of parents,
teachers, and state and local officials, and not of state judges. ...[jjudicial intervention in

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educational issues is appropriate only when a constitutional right is ‘directly and sharply
implicated.’”577
Coalition for Adequacy and Fairness in School Funding, Inc., v. Chiles, 680 So.2d 400
(Fla. 1996)
At the time of these proceedings, Article IX, section 1 of the Florida Constitution
provided that “[a]dequate provision shall be made by law for a uniform system of free public
schools and for the establishment, maintenance and operation of institutions of higher learning
and other public education programs that the needs of the people may require.”578 Plaintiffs at the
bar charged that the state’s public school funding provisions violated this mandate, failing to
provide its students the fundamental right of an adequate education. A trial court in Leon County
dismissed their call for declaratory relief and the Supreme Court of Florida affirmed the ruling on
appeal. The court countenanced the lower court’s determination that “there is no textually
demonstrable guide in Article IX, section 1, by which the court may decide, a priori, whether a
given overall level of state funds is ‘adequate.’”579 The supreme court did note that courts in
Florida had attempted to define what a “uniform system of free public education” entailed. The
court itself had ruled in 1991 that “[t]he Florida Constitution only requires that a system be
provided that gives every student an equal chance to achieve basic educational goals prescribed
by the legislature. The constitutional mandate is not that every school district in the state must
receive equal funding nor that each educational program must be equivalent.”580 The court also
marked that in 1993 it specifically declined to define “a uniform system of free public schools,”
reasoning that the legislature bore that responsibility.581 In addition, the observation was made
that “Florida law now is clear that the uniformity clause will not be construed as tightly
restrictive, but merely as establishing a larger framework in which a broad degree of variation is
possible.”582 Reflecting the sentiments of the trial court, the opinion stated that:

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The courts cannot decide whether the legislature’s appropriation of funds is
adequate in the abstract, divorced from the required uniformity. To decide such
an abstract question of “adequate” funding, the court would necessarily be
required to subjectively evaluate the Legislature’s value judgments as to the
spending priorities to be assigned to the state’s many needs, education being one
among them. In short, the Court would have to usuip and oversee the
appropriations power, either directly, or indirectly, in order to grant the relief
sought by Plaintiffs.583
In the estimation of the court, “uniformity” offered a manageable standard as defined as a
lack of substantial variation, however “adequacy” failed to present with “judicially and
manageable standards.” Thus in conclusion, the court wrote that:
While we stop short of saying “never” appellants have failed to demonstrate in
their allegations, or in their arguments on appeal, an appropriate standard for
determining “adequacy” that would not present a substantial risk of judicial
intrusion into the powers and responsibilities assigned to the legislature, both
generally (in determining appropriations) and specifically (in providing by law
for an adequate and uniform system of education).584
In the instant case, the state’s high court did not address the question of education as a
fundamental right. The trial court had dismissed the plaintiffs claim under the equal protection
provisions of the state’s constitution, determining that they had failed to demonstrate that the
funding formula was not rationally related to the provision of a uniform system of public
education, a finding grounded on the holding that the state constitution did not create a
fundamental right to a particular level of funding.
Committee for Educational Rights v. Edgar, 672 N.E.2d 1178 (111. 1996)
An association of sixty school districts and thirty-seven districts named individually
brought this suit against the state of Illinois seeking a declaratory judgment that the statutory-
program governing the funding of public schools violated the education article and equal
protection provision of the state constitution. The Supreme Court of Illinois affirmed the
judgment of an appellate court for the defendants. The court first analyzed Article X, section 1 of
the Illinois Constitution of 1970 which stated in part that “[t]he State shall provide for an efficient
system of high quality public educational institutions and services,” while identifying educational

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development as a “fundamental goal” and charging the state with the responsibility to finance
public education.585 The plaintiffs argued that the dependence of the system on local taxable
property wealth produced vast disparities therefore was not “efficient” within the meaning of the
constitution. Further, they contended that school districts with low property tax bases were unable
to provide a “high quality” education due to the inadequate funding. While denying they sought
absolute parity in educational offerings or equal spending per pupil, plaintiffs asserted that the
efficiency requirement necessitated general parity. In entertaining the parameters of “efficiency”
the court turned to the development of the constitution to observe:
The framers of the 1970 Constitution grappled with the issue of unequal
educational funding and opportunity, and chose to address the problem with a
purely hortatory statement of principle. To ignore this careful and deliberate
choice by interpreting the efficiency requirement as an enforceable guarantee of
equality would do violence to the framers’ understanding of the education
article.586
Plaintiffs had pointed to Abbott v Burke587 and the New Jersey court’s treatment of
“efficiency,” ruling that it dictated fairness and parity in educational funding. The Illinois court
was unmoved, quoting a review that characterized the reasoning employed in Abbott as “an
intellectual shell game.”588 The court further elaborated on the bounds of judicial determination in
its delineation of the “high quality” requirement of the education article. In stressing that what
constituted a “high quality” education was property left to the General Assembly, the court
opined “[cjourts may not legislate in the field of public education any more than they may
legislate in any other area. In reviewing legislation, the role of the courts is now, as before, to
ensure that the enactment does not exceed whatever judicially enforceable limitations the
constitution places on the General Assembly’s power.”589 In marking that what a quality
education consisted of “cannot be ascertained by any judicially discoverable or manageable
standards,”590 the opinion stated that “an open and robust public debate is the lifeblood of the
political process in our system of representative democracy. Solutions to problems of educational
quality should emerge from a spirited dialogue between the people of the State and their elected

254
representatives.”591 Marking the inherent limitations on the judiciary in reference to public
education policy the court cited its’ observation in Fiddler v. Eckfe.ltf92 that:
When we look for limitations on that power we find these two, and these two
only, which the courts can enforce-, that the schools shall be free, and that they
shall be open to all equally. The court has enforced these limitations when the
occasion requiring the enforcement of them arose. There are no others to which
the judicial power extends.593
Turning to an equal protection claim, the court dismissed the plaintiffs’ characterization
of educational as a fundamental right citing its relationship to other rights “which are at the core
of one’s role as a citizen.”594 The court responded that “[recognition that rights of expression and
participation in the political process are fundamental—and thus safeguarded against unjustified
governmental interference—does not necessarily translate into an affirmative governmental
obligation to enrich each individual’s personal capacity or ability to exercise these rights.”595 This
finding, in addition to the absence of a suspect class, compelled the court to apply a rational basis
test in its equal protection analysis. Utilizing same, the court found that the general education
financing program, dependant on both local and state revenues represented legitimate legislative
efforts to “strike a balance between competing considerations of educational equality and local
control.”596 The opinion included the observation that “[wjhile the present school funding scheme
might be thought unwise, undesirable or unenlightened from the standpoint of contemperar}'
notions of social justice, these objections must be presented to the General Assembly.... [andj the
process of reform must be undertaken in a legislative forum rather than in the courts.”59'
Sheffv. O’Neill, 678 A.2d 1267 (Conn. 1996)
In an action seeking a declaratory judgment and injunctive relief, the plaintiffs, eighteen
elementar}- and secondary' school students in Hartford, asserted that the state had a constitutional
obligation to remedy educational inequities in the Hartford public schools. In this case before the
Connecticut Supreme Court, plaintiffs maintained that the de facto racial and ethnic segregation
between Hartford and surrounding suburban school districts deprived them of an equal

255
opportunity to an education, violating the education articie and equal protection provision of the
state constitution.598 While acknowledging that the state had not intentionally segregated racial
and ethnic minorities, plaintiffs charged that the districting statute which dictated school district
boundaries was the single most significant factor contributing to the segregation. In the Hartford
public school system, 92.4 percent of the students were members of minority groups, compared to
25.7 percent of the entire state student population/9" Therefore, the state was accused of
maintaining a district that was severely disadvantaged and failed to provide a minimally adequate
education. The plaintiffs did not attack the state’s funding system, as the court noted that “overall
per pupil state expenditures in Hartford exceeded the average amount spent per pupil in the
twenty-one surrounding suburban districts. The state reimburses Hartford for its school
renovation projects at a rate that is considerably higher than the reimbursement rate for the
twenty-one surrounding suburban districts.”600 The state argued that the text of the education
article deprived the court of jurisdiction to consider whether the plaintiffs were entitled to relief
by way of an order to the legislature to provide a remedy, in addition to marking that recovery is
precluded in that no allegation has been made of intentional state action. The Connecticut
Supreme Court, in holding for the plaintiffs, addressed the justiciability question, citing court,
precedent to determine that it was within its province to determine what was “appropriate
legislation.” The opinion observed, “[jjust as the legislature has a constitutional duty to fulfill its
affirmative obligation to the children who attend the state’s public elementary and secondary
schools, so the judiciary has a constitutional duty to review whether the legislature has fulfilled its
obligation.”601 Further, the court embraced the plaintiffs’ argument that “because of the state’s
knowledge of the racial and ethnic isolation in the Hartford schools, combined with the state’s
extensive involvement in the operations of Connecticut’s pubiic schools and the impact of state
statutes, mandating school attendance within statutory defined schools districts,”602 the state bore
responsibility and that failure was actionable. The court opined that “[t]he failure adequately to
address the racial and ethnic disparities that exist among the state’s public school districts is not

256
different in kind from the legislature’s failure adequately to address the ‘great disparities in the
ability of local communities to finance local education”’6ib which it had addressed in Horton v.
Mes kill.6'1' The defendants framed the issue as whether the state bad satisfied its affirmative
constitutional obligation to provide substantially equal education opportunity if it has
substantially provided equalized funding and resources. The plaintiffs, urging a broader
inteipretation of the mandate, maintained that the combination of “racial segregation, the
concentration of poor children in the schools, and disparities in education resources”605 deprived
Hartford students of equal educational opportunities. In ruling that Article 8, Section 1, informed
by Article 1, Section 20,606 required the state to take responsibility “to remedy segregation in our
public schools, regardless of whether that segregation has occurred de jure or de facto,”607 the
court premised its judgment on the understanding that severe racial and ethnic isolation in and of
itself deprived plaintiffs of a substantially equal educational opportunity. The court, citing that the
state had failed to justify its official actions, embraced the equal protection claim in light of the
demonstrated racial and ethnic disparities. Addressing the state’s responsibility, the opinion
stated:
The state had ample notice of ongoing trends toward racial and ethnic isolation in
its public schools, and indeed took a number of laudable remedial efforts that
unfortunately have not achieved their desired end. The fact that the legislature
did not affirmatively create or intend to create the conditions that have led to the
racial and ethnic isolation in the Hartford public school system does not, in and
of itself, relieve the defendants of their affirmative obligation to provide with a
more effective remedy for their constitutional grievances.608
In granting declaratory relief, the court directed the lower court to retain jurisdiction
while affording the General Assembly the opportunity to address the constitutionally defective
statutes. The dissent took the majority to task for transforming “a laudable educational
philosophy into a constitutional mandate.” 609 The dissenting justice wrote:
That philosophy is that racially and ethnically integrated schools are socially and
educationally preferable to racially and ethnically concentrated schools, because
they confer certain significant social benefits on their students that such
concentrated schools cannot, and they avoid certain significant social burdens
that such concentrated schools are likely to impose. That belief, however, is

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utterly without basis as a constitutional claim of deprivation of equal educational
opportunity.610
The dissenting opinion marked that the majority, in constructing an opinion devoid of
facts and constitutional principles had paid little heed to the trial court’s finding that “it is
poverty, not racial or ethnic concentration, that accounts for the differences in educational
outcomes and achievements between the children of the Hartford schools and those of
surrounding districts.”611 The dissent had difficulty reconciling the plaintiffs’ claim of
deprivation of educational resources with their acknowledgement that this wras not a school
funding case. The plaintiffs attempted to demonstrate differences in education quality with
comparisons of statewide mastery tests, (a questionable practice according to the trial court) not
the provision of resources, contradicting the court’s understanding in Horton, according to the
dissent. It observed “that any appropriate standard by which to measure the state’s assumed
obligation to provide a minimally adequate education must be based generally, not on what level
of achievement students reach, but on what the state reasonably attempts to make available to
them, taking into account any special needs of a particular local school system.”6'2 Calling
attention to the ramifications of the decision, the dissent noted that with an absence of legitimate
justification, “the majority strikes down the legislative policy detennination that more can be
accomplished toward the goal of diversity in our public schools systems by voluntary and
incremental means, supplemented by state funding incentives, than by a mandate that requires the
abandonment of municipality based school districts and the institution of a statewide system of
transportation of schoolchildren.”613 Whereas the majority opinion, in referencing the imposition
of judicial mandate, held that “[o]ur oath, our office and the constitutional rights of the schools
children of Hartford, require no less of us in this case,”614 the dissent asserted that the same oath
embraced the concept of judicial respect for the legitimate policy domain of the legislative
615
branch.

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Matansuka-Susitna Borough School v. State, 931 P.2d 391 (Alaska 1997)
In this case before the Supreme Court of Alaska, school boroughs, school districts and
individual plaintiffs argued that the difference in treatment between themselves, regional
educational attendance areas (REAA) and more affluent school districts violated the equal
protection demand of the state’s constitution. Plaintiffs charged that wealthier school districts
were able to generate significantly greater revenue due to the statutory requirement of either a
four mill tax or contribution of a percentage of the previous year’s basic need, whichever was
less. Further, the REAA districts were not required to make a local contribution. The state’s
design of construction funding aid was also characterized as discriminating between districts and
REAA districts through its allocation of 70 percent of the funding in the former and 98 percent in
the later. First addressing the equal protection claim based on educational opportunity, the court
dismissed the plaintiffs’ charge, given that “the individual plaintiffs have failed to arguably show
that disparities in the local contribution required of districts translate into disparities in the
educational opportunities available to students....”616 The court noted the testimony of an
educational consultant who opined that spending per students among districts “is as equitable as
[in]any program I have examined.”617 Dismissing an equal protection claim based on school
construction aid, the court found that in the absence of any evidence of significant disparities in
overall state aid, it was left with little more than a challenge to a debt reimbursement program.
Addressing the equal protection challenge directed at the taxation scheme, the court did
acknowledge disparate burdens and proceeded with a rational basis analysis given the
understanding that “freedom from disparate taxation, lies at the low end of the continuum of
interests protected by the equal protection clause.”018 Utilizing the rational relationship analysis,
the opinion held that the statute was designed to provide an equitable level of funding of
educational opportunity. Operating on the premise that the sole responsibility for designing how-
best to maintain schools lie with the legislature, the court found that the state had met the
constitutional mandate “to assure an equitable level of educational opportunity for those in

259
attendance in public schools of the state.”619 The opinion marked that the state had legitimate
reason to accommodate REAA districts in light of the fact that they were prohibited from raising
taxes on their own. Regarding the local tax restrictions, the court, while acknowledging that
disparities did exist, found that they protected “against increased funding inequities among
districts and furthers the statutory purpose of equitable educational opportunity statewide.”620
The ruling, noting cases from other jurisdictions, drew attention to “the latitude lawmakers are
given in furthering public policy objectives even when the means chosen may happen to have
severely disparate impacts on certain classes of taxpayers.”621
Brigham v. State, 692 A.2d 384 (Vt. 1997)
The Supreme Court of Vermont granted plaintiffs declaratory judgment in this case,
ruling that the state’s system for funding public education, dependant as it was on local property
tax, resulted in substantial disparities in revenues which denied children equal educational
opportunities. As such, the education financing system violated the education622 and common
benefits6'3 clauses of the Vermont Constitution. In considering the financing of public schools in
light of these constitutional mandates, the court drew attention to the revenue disparities that
resulted therefrom. The court noted the range of expenditures per pupil between the wealthiest
and poorest districts and the range of same measure between the top 5 percent wealthiest school
districts and the 5 percent poorest.624 In addition to illustrating the correlation between spending
and taxable property, the court quoted a state Department of Education report that in fiscal year
1995, “[a] statistically significant relationship exists between the wealth of a school district and
its spending per pupil. Based largely on this relationship, there continue to be large disparities in
per pupil spending.”625 Pointing to the state’s foundation plan, the court found that the object of
the scheme was “not equality of educational opportunity generally, or even equality of local
capacity to facilitate opportunity. It is only to equalize capacity to produce a minimally adequate
education....”626 With the state conceding that educational opportunities varied across the state,

260
the court also analyzed the state’s education program in light of the historical record referencing
the construction of the education clause. The court observed that from its prominence in the
constitution and prior state court holdings, education was a fundamental obligation of the state.
As such, “[t]he state may delegate to local towns and cities the authority to finance and
administer the schools within their borders; it cannot however, abdicate the basic responsibility
for education by passing it on to local governments, which are themselves creations of the
state.”627 On the premise that education was a fundamental right, the court in addressing the equal
protection claim under the common benefits clause,628 remarked that regardless of the standard of
scrutiny applied, the system was constitutionally deficient. According to the court, the state’s
argument that it fostered local control was without merit. The court reasoned that the funding
system was not integral to the maintenance of local control asserting that regardless of financing
scheme, it was still possible to leave “the basic decision-making power with the districts.”6"9
Further, it observed that for poorer districts, the notion oflocal choice was illusory, constrained as
these school districts were by insufficient revenues. Responding to the state’s argument that while
the state constitution mandated a basic right to an education it demonstrated no intent that it be
distributed equally or above minimally adequate provision, the court opined:
Yesterday’s bare essentials are no longer sufficient to prepare a student to live in
today’s global marketplace. To keep a democracy competitive and thriving,
students must be afforded equal access to all that our educational system has to
offer. In the funding of what our Constitution places at the core of a successful
democracy, the children of Vermont are entitled to a reasonably equal share.630
Having framed a ruling premised on adequacy, the opinion did mark that “[m]oney is
clearly not the only variable affecting educational opportunity, but it is one that government can
effectively equalize.”631 While concluding that the specific means “of discharging this broadly
defined duty” is properly left to the legislature, the court commented that while absolute equality’
was neither practical nor necessary, the state was constitutionally obligated to ensure substantial
equality of educational opportunity throughout the state.

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DeRolph v. State, 677 N.E.2d 733 (Ohio 1997)
Article VI, Section 2 of the Ohio Constitution required the General Assembly to secure a
“thorough and efficient system of common schools” throughout the state.'5j2 A diverse group of
plaintiffs, including sc